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Family Law

At what age are children’s views taken into account in the family court?

By January 9, 2017No Comments

By Gianna Huesch

We are sometimes asked at what age the family courts will take children’s views into account on where they should live. There does seem to be a common misperception that there is a magic age, such as 12, when children’s feelings on parenting arrangements are taken into account. But in truth, there is no set age, and no guarantee that a court will place any weight on your children’s views on their living arrangements.

Under the Family Law Act 1975 (the Act), there are two primary considerations in parenting matters, both of which have the best interests of the child at their heart. First, a child should be able to enjoy a meaningful relationship with both parents, and second, a child must be protected from physical and psychological harm. After these primary considerations, the court will also consider a number of other factors, including the child’s views and the weight those views should have, based on a child’s actual age and emotional maturity. Trial judges must then weigh up all the evidence and the child’s views are just one component of the total equation.

There is no age defined in the Act, but courts will typically weight the child’s views more heavily if a child is found to be mature and insightful, and this is usually when they enter their teens. Apart from age and maturity level, other factors come into play, including:

  • the strength of the child’s views and how long the views have been held;
  • the extent to which the child’s views have been shown to be well thought through rather than based on irrelevant issues;
  • whether there was any pressure on the child to form the views, intentional or not;
  • how much the views are based on emotional attachments rather than a considered and logical viewpoint.

(Source: Batkin & Batkin (2013) FamCA 44)

Under the Act, children cannot be called as witnesses nor be present in court during proceedings, so courts are made aware of children’s views through avenues such as presentation of a family report (a psychologist or social worke’sr assessment), an interview with a family consultant and/or the child’s representation by an Independent Children’s Lawyer.

Do you need assistance with parenting arrangements? Please contact Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 to discuss your needs.

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