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Family Law

Children’s views – at what age do they matter?

By October 31, 2019February 23rd, 2024No Comments

Is there a “magic age” when family courts will listen to what the children want to happen with regard to parenting arrangements about them? No, but generally speaking, the older and more mature a child is (before coming of age at 18), the more likely it is that the courts will respect children’s views when deciding parenting litigation outcomes.

Under the Family Law Act 1975, the family courts’ paramount consideration when making decisions about a child’s living arrangements is to uphold the “best interests of the child”.  The courts must consider the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from the risk of physical or psychological harm. In addition, however, the courts must also have regard to, among other things, children’s views and any factors (such as the child’s maturity or level of insightfulness) that the courts think are relevant to the weight that should be given to the child’s views.

Factors the courts must consider when determining parenting arrangements include considerations of:

  • The nature and history of the child’s relationship with each parent.
  • How a change to the child’s circumstances may affect them, for example how a child may be affected if separated from either of his or her parents or any other person (siblings, grandparents, parent’s partners) the child has been living with.
  • Any practical difficulties that may arise with custody arrangements, such as financial expenses or lifestyle and education obstacles involved in long-distance parenting arrangements.
  • The ability of each parent to provide for the child including his or her emotional and intellectual needs.
  • Each parent’s attitude to the child and their demonstrated dedication to the responsibilities of parenthood.
  • Any history of family violence.
  • And any other facts or circumstances the court feels relevant to the case.

In section 60CC(3) of the Act, ‘Additional Considerations’ are outlined, and within this section, subsection (3)(a) discusses “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views”.

However, even where an apparently mature and insightful child has expressed strong views, a court may still need to assess whether there has been any manipulation of the child, or whether the child is attempting to please one parent, or if there are other underlying reasons for children’s views or a child’s refusal to spend time with a parent. To make a determination about this, a court may appoint an Independent Children’s Lawyer to give an independent view of what is in child’s best interests. In other cases, treatment notes from social workers, psychologists or other health professionals may come into play in assisting a court to determine how much weight shall be placed on the child’s wishes. The court may also order that the parties and the children attend upon a court-appointed expert to prepare a Family Report. Ultimately, the court has to make orders that it considers to be in the best interests of the children, though, which may not align with that child’s wishes.

In a recent relocation case in the courts (pseudonymised as Watts & Lorreck), involving two children aged 12 and 17 where the children expressed a view that they wished to remain living with their father, the court gave significant weight to the children’s “strongly held” views despite finding the children’s views had been coloured by the father.

The judge described how,

“…the father, to an extent, pandering to the children’s desires by facilitating the use of electronic technology including purchasing iPads for both of them and, most relevantly, in the father encouraging the children to write directly to the Court to express their desired outcome in these proceedings…”

This accorded with the mother who argued the father had “heavily influenced” the children’s views. While she acknowledged the children had expressed a desire to live with their dad, she said their views had not been rationally thought out. She said the children weren’t mature enough to make the decision on where they should live “based on well thought-out rationale”:

“X has stated that the reason he would want to live with his Father was because he had Wi-Fi. This is hardly a mature reason.”

However, given their age, the view of the Independent Children’s Lawyer that the children had “consistently expressed the view they wished to remain” with dad, as well as statements made by the children, such as that they didn’t want to live “in [the mother’s] miserable house…being yelled at”, sided with the father.

For family law help, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services on (02) 6223 2400.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.

You may also like to read our blogs on parental relocation here and here, or our blog on children’s involvement in the family law system here.

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