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Does the Court consider the children’s wishes when making orders?

From a broader perspective, the Family Law Act does provide the Court with the ability to consider the children’s wishes. However, the Court is by no means bound to rely upon or give weight to the child’s views.

General Provisions applied in Parental Matters:

One of the paramount considerations in parenting matters is the child’s best interest, as stated in section 60CA of the Family Law Act 1975 (Cth).

When determining the best interests of the child, the Court must consider:

  • The benefit of the child having a meaningful relationship with both the child’s parents (s 60CC(2)(a)); and
  • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)).

There are also additional factors under s 60CC(3) which are considered by the Court in parental matters. This includes: 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 (s 60CC(3)(a)).

Case law – Boldemonte v Boldelmonte & Anors (2017) FLC 93-763:

This case provides a clear example of considering the child’s wishes.

To provide a background, the two sons, who had previously resided with their father in Australia, travelled to New York for a holiday. During the trip, the father advised the mother that they would not be returning to Australia, and the boys wished to remain in New York with their father. The matter was taken up to the High Court of Australia but was inevitably determined in the mother’s favour. The High Court asserted the trial Judges had taken into account the children’s view, stating:

The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests”.

Therefore, the Court has broad discretion in considering the child’s views or wishes. If views are expressed by a child, the weight of such views varies in the circumstances which may arise. The High Court’s decision makes irrefutably clear that if a child’s wishes are taken into consideration, it is but one of many factors relevant to the determination of parenting orders.

Children’s Involvement in Family proceedings:

Generally, the Court does not allow the direct involvement of children in parenting determinations. Alternative methods are considered to be a more suitable way of obtaining the child’s views.

One option is the appointment of an Independent Children’s Lawyer (ICL) under s 68L of the Family Law Act, to represent the child’s best interests. Although somewhat uncommon, an ICL is often appointed in circumstances involving child abuse or neglect, mental health issues, domestic or family violence, allegations of substance abuse and other complex issues.

The Court may also rely on a Family Report to decide as to which arrangements are in the child’s best interest. Family Reports are documents written by a professional, social worker or psychologist, after meeting with the child and listening to their beliefs, interests and wishes.

In other instances, mechanisms are in place, including the use of counsellors’, child representatives, and witnesses, to ensure the child remains protected, whilst simultaneously allowing the child to have a voice.

What to do if you find yourself in Family Court proceedings:

Family Court proceedings are generally a playground for heightened emotions and distress. It is important to note that if you find yourself in a relationship breakdown, separation, divorce, or other Family Court proceeding, and your children are involved, it is wise to find legal representation, to help with the process.

Remember, it is in both you and your child’s best interest to remain amicable and neutral to all parties involved.

If you would like to discuss your family law matter with a legal representative, feel free to contact our family law team.

By Teigan Hutchison