A common question in family law parenting disputes is: ‘Will my child’s wishes be considered?’. Unfortunately, there is no clear-cut answer to this question. However, what can be said is that a child’s wishes alone will not determine a parenting dispute.
In some circumstances, a child’s wishes will be taken into consideration and afforded weight by a judicial officer, but ultimately parenting orders will always be made in accordance with what is in the best interests of a child. Read more about what is considered when making parenting orders, in our article “Parenting orders for spending time with children”.
When considering what is in the best interest of a child, the child’s ‘views’ or ‘wishes’ may be considered as an additional consideration under the Family Law Act 1975 (Cth) (“the Act”).
How does the court ‘hear’ the views of a child?
The Act outlines how the court may inform itself of views expressed by a child.
The court may inform itself of views expressed by a child:
- by having regard to anything contained in a report given to the court under Section 62G (2). This generally requires the person giving the report to ascertain the child’s views and include those views in a report; or
- by making an order under for the child’s interests in the proceedings to be independently represented by a lawyer. The Act requires an Independent Children’s Lawyer for the child to ensure the child’s views are fully put before the court; or
- subject to the rules of the court, by such other means as the court thinks appropriate.
In Australia, it is not commonplace for a judicial officer to speak directly with a child in respect of their views or wishes. Such information is reported to the court either through a report; a Child’s Wishes/Family Report or a Single Expert Witness Report, generally written by a child psychologist or social worker, or independent party (an Independent Children’s Lawyer or family consultant).
In accordance with the Act, a child is not required to express their views in relation to a matter.
What weight is attributed to a child’s view or wish?
Again, there is no simple answer to this question. It is largely dependent on the unique circumstances of each matter.
The weight afforded to a child’s view or wish can be dependent on the following factors:
- The child’s age, maturity and understanding. Generally speaking, an older child’s wish will be given more weight than a younger child as they will generally be considered more mature and have a greater capacity to have input into decisions that affect them;
- Whether the child has been influenced by a parent or third party;
- The strength and duration of the child’s wishes; and
- The degree of the child’s appreciation of the long-term implications of their wishes.
It is also important to note that a child’s view is only one of the additional considerations found in in the Act, amongst a raft of additional considerations that must be considered together with the primary considerations.
There is often caution surrounding a child expressing a view or wish because:
- children are often ‘people pleasers’ – especially in a separated family dynamic. Children with tell parents ‘what they want to hear’ and not necessarily express the same wish to both parents;
- children can be influenced by the views of a parent and therefore the view they express may not necessary be of their own construction; and
- children are often not mature enough to be able to form and articulate a well-reasoned view with regard to their future circumstances.
Whilst a child’s view or wishes is a relevant consideration in the making of parenting orders, it will generally not be the only determining factor. It is important to appreciate that what is in a child’s best interest is not necessarily aligned with what a child’s view or wish may be.
If you’d like to discuss your family law matter with a lawyer or arrange an initial consultation, feel free to get in touch directly with today’s blog writer, Meillon & Bright solicitor, Chelsea Bech.
The information contained in this article is of general nature and should not be construed as legal advice.