Australia’s family law system must be overhauled to ensure children have a say in the decisions that affect them, a Senate inquiry has been told. The probe has also heard current arrangements leave children open to being misinformed or “played” by their parents in custody and access cases. National Children’s Commissioner Megan Mitchell says there is no obligation to engage children or hear their views, but that a judge may choose to do so.

“Rather than a discretion, I think it should be a requirement,” she told the hearing launched on Friday. “I really think we need to be aware of how much of a safeguarding tool being able to speak up, raise your concerns, say what you feel is for kids.” Ms Mitchell said the findings of the royal commission into institutional responses to child sexual abuse shows that “silencing kids never protects them”. She said children are often unclear on their rights and have little trust that their views are being properly represented in court.

“They’re also very confused about the outcome,” the commissioner said. “They don’t get anything in accessible format about what the decision was at the end of the day, and I believe that means the parents can easily play the child a bit, and misinform the child about what the outcome was and why.”

Under the proposal, it would be a requirement that children are given the opportunity to express their views but they would also have the right to decline. Ms Mitchell said the new approach would require ensuring court officials have the skills to communicate with young people, citing the case of one judge who said they would rather be asked to do brain surgery than engage with a child. The committee also looked into case backlogs as well as child support payments and debts.

Representatives from the Department of Social Services said the average annual child support payment for one child is $5600 but in about 30 per cent of cases, that amount is less than $500.