Children often hold strong views on where they should live or how time should be allocated with their parents, especially as they get older. Their views are just one of many factors a court must consider in determining their best interests in parenting proceedings. However, as a recent case in the family courts shows, sometimes the child’s views can be a very deciding factor, weighing heavily in the judicial outcome. So why might one child’s opinion be given a greater weight than another child expressing views in their matter? Let’s take a look at how children’s views are heard in court and when they might be given a greater weight by a judge.
[Children’s views: how are they heard in court?…continued]
How are children’s views heard? Can a child tell the judge what they want? A child’s opinion on their future living arrangements is taken into account by the family courts, but only indirectly. However, while children don’t meet judges or actually appear in court, the court has several methods through which it can take children’s wishes into account in a proceeding. These include:
- a Child Dispute Conference, where evidence is provided to the court from a Family Consultant following a Child Dispute Conference;
- Family Reports, prepared by a Family Consultant;
- evidence from qualified Expert Witnesses;
- evidence from an Independent Children’s Lawyer who represents the child and presents the child’s views to the court.
Under the Family Law Act 1975, 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 various factors.
Trial judges must then weigh up all the evidence and the child’s views are just one component of the total equation. For example, no matter what the child’s views are, it may still not be practical for the child’s wishes to be implemented.
How much weight is given to the child’s views?
The weight given to the child’s views is subject to consideration of a number of other factors. These include the child’s age, their emotional and intellectual maturity, their independence, the apparent strength of their wishes (eg. do they say it often and to whom), whether the child’s views appear to have a rational base and if the views appear to have been influenced by a parent (or someone else).
How much weight is afforded to a child’s views is also dependent on other aspects of the matter. For example, if the matter is very complex or involves allegations of risk, then the child’s views will be quite subordinate to other considerations. But if the matter is relatively simple, and there are no risk factors, the child’s wishes may well be given more weight.
A recent case in the Family Courts is a good example of how a fairly simple parenting matter afforded a 12 year old girl’s views a great deal of weight in the overall picture. In the matter of Wadhams & Wadhams (court-appointed pseudonyms), details of the girl’s opinion on how she should spend time with each parent had been revealed to the court via the Child Inclusive Conference Memorandum, prepared by a Family Consultant. In the judgment, there are numerous references to the girl’s “clear views” and the fact that she was assessed by experts as being “a thoughtful and articulate young person”. In this matter the child’s “candid” opinion on her preferred living arrangements was strongly weighted by the judge.
You can read this judgment in full here.
For assistance with a family law matter, please call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law 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 Family Law.
