Chil­dren’s wish­es in Fam­i­ly Law mat­ters: will your child’s wish­es be con­sid­ered by the Court?

If you are expe­ri­enc­ing a fam­i­ly break­down, it is like­ly that you are fac­ing one of the most chal­leng­ing and stress­ful times in your life. It is impor­tant to remem­ber that this stress and grief is not only lim­it­ed to you and your for­mer part­ner or spouse, but also extends to your child. 

Chil­dren nav­i­gat­ing a fam­i­ly break­down may expe­ri­ence unex­pect­ed changes to the liv­ing arrange­ments they have been accus­tomed to and face uncer­tain­ty as to what will hap­pen to them and each of their par­ents in the future.

Although par­ents wish to shield their chil­dren from the ​‘nit­ty grit­ty’ of court pro­ceed­ings you will no doubt want to under­stand whether your child’s views and wish­es will be tak­en into account and whether they will get to ​‘choose’ where they want to live. 

Sec­tion 60CA of the Fam­i­ly Law Act pro­vides that in decid­ing what orders the Court will make in rela­tion to a child, the ​“best inter­ests of the child” is the para­mount con­sid­er­a­tion. In deter­min­ing what is in a child’s best inter­est s60CC of the Fam­i­ly Law Act requires the Court to take into account pri­ma­ry con­sid­er­a­tions such as:

1. the need to pro­tect the child from harm;
2. the ben­e­fit to the child of hav­ing a mean­ing­ful rela­tion­ship with both of the child’s parents;

and sec­ondary con­sid­er­a­tions such as:

1. any views expressed by the child;
2. the nature of the rela­tion­ship the child has with each of their par­ents and extend­ed family;
3. the matu­ri­ty, sex, lifestyle and back­ground of the child

The extent to which a child’s views or wish­es are tak­en into con­sid­er­a­tion by the Court and the weight to be attrib­uted to those wish­es will depend on the child’s age, matu­ri­ty, lev­el of under­stand­ing and abil­i­ty to express their views. Accord­ing­ly, whilst there is no set age that a child must be in order for their views to be tak­en into con­sid­er­a­tion, the views and wish­es of younger chil­dren are like­ly to be giv­en less weight than those of chil­dren in their teenage years. 

Whilst chil­dren are not called to give evi­dence dur­ing court pro­ceed­ings, there are a num­ber of ways in which a child may express their views or wish­es to the Court. This includes:

1. Express­ing their views to the Fam­i­ly Con­sul­tant at a Child Inclu­sive Con­fer­ence. The Fam­i­ly Con­sul­tant will then record the child’s views in a Mem­o­ran­dum which is pro­vid­ed to the Court. 
2. Express­ing their views to a Court appoint­ed Expert such as a psy­chi­a­trist or psy­chol­o­gist. The Expert will then record the child’s views in a Report which is pro­vid­ed the Court. 
3. Express­ing their views to the Inde­pen­dent Chil­dren’s Lawyer who may be appoint­ed by the Court to rep­re­sent the child’s best inter­est. The Inde­pen­dent Chil­dren’s Lawyer will then con­vey the child’s views and wish­es to the Court.

It is impor­tant to note that the Court is not required to make orders that adopt a child’s wish­es and may depart from the views expressed by a child in cir­cum­stances where it deter­mines that such a depar­ture is in the child’s best interest. 

This was recent­ly con­sid­ered by the High Court in Bon­del­monte [2017] HCA 8 where notwith­stand­ing the child in ques­tion being 16 years of age, the Court did not make par­ent­ing orders adopt­ing the views he had expressed to the Court appoint­ed expert. The High Court specif­i­cal­ly not­ed that a child’s views ​“are but one con­sid­er­a­tion of a num­ber to be tak­en into account in the over­all assess­ment of a child’s best inter­ests” and that the Court will ​“take into account not only the views expressed by the child, but also any factors…that the Court thinks are rel­e­vant to the weight it should give to the child’s views. The fac­tors that the pro­vi­sion gives as rel­e­vant are the child’s matu­ri­ty or lev­el of under­stand­ing, but plain­ly the Court may con­sid­er oth­er mat­ters to be rel­e­vant.”

It is also impor­tant to remem­ber that Fam­i­ly Court pro­ceed­ings do not exist in a vac­u­um and that as chil­dren get old­er and more inde­pen­dent they are like­ly to ​“vote with their feet” and make their wish­es known to their par­ents. Each fam­i­ly dynam­ic is unique and accord­ing­ly, each child’s views will ulti­mate­ly be con­sid­ered in the con­text of their indi­vid­ual circumstances. 

The solic­i­tors at Swaab are Accred­it­ed Fam­i­ly Law Spe­cial­ists and Annette Wil­son is list­ed in Doyles Guide as a Rec­om­mend­ed Lawyer in the Par­ent­ing and Chil­dren’s Mat­ters Cat­e­go­ry. We are avail­able to pro­vide expert advice and assis­tance in par­ent­ing dis­putes no mat­ter the complexity.