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Do the Children’s Wishes Count in Family Law?

do children's issues count in court

Recent coverage surrounding family law cases has raised the question for some parents as to whether their child’s wishes are something that would be considered in a family law proceeding.

First and foremost the best interests of the child is the paramount consideration when determining all future parenting arrangements. The court’s final orders should always reflect its findings on the evidence about what is most likely to promote this principle.

In determining this, the Family Law Act 1975 sets out two primary considerations when dealing with parenting matters:

1. The benefit of a child having a meaningful relationship with both parents; and

2. The need to protect a child from physical or psychological harm.

Views expressed by a child will not solely form the basis for the Court’s decision. There are a number of different factors set out under the legislation which needs to be considered after a focus upon the `primary’ considerations as set out above. The views of a child are only one of those factors. It is important to note that even though a child’s wishes are relevant, that relevance is also dependent on their level of their understanding and maturity.

Whilst the Family Law Act remains silent with respect to what age a child must be before their wishes are considered definitive by the Court, generally speaking, a Court will place significant weight on the wishes of a child over the age of thirteen years, and earlier if a child is particularly mature and insightful.

How are the views heard?

Given the Court does not generally favour direct involvement of children in litigation due to the nature of the process and the potential disadvantages for the child, alternative methods which are considered to be a suitable vehicle for capturing the child’s views are:

1. A Family Report, where the writer (generally a skilled psychologist or social worker) has met with the parties and child;

2. A Family Consultant from the Court’s Counselling Service whom can meet with the parties and report orally or in writing to the Court; and/or

3. The appointment of an Independent Children’s Lawyer. The latter will meet with children when they are sufficiently mature to understand the nature of the ICL’s appointment and their role. The ICL is not a child’s advocate and does not act on a child’s instructions, but rather is empowered to make all such enquiries as are pertinent to determining what is in a child’s best interests and thereafter to make submissions to the Court relevant to what would be best for a child.

Arguably a parent is in an ideal place to represent the interests of a child, but the adversarial nature of litigation is such that the Court will generally search for an objective measure of a child’s wishes beyond that which their parents are representing. This is partly recognition of the fact that children are very vulnerable to an instinctive need to please a loved parent and tell them what they think the parent requires. In many cases, both parents will report that their son or daughter has expressed a desire to live with them solely. This is another good reason to avoid discussions of such a nature with kids unless they are old enough to handle the undercurrent of conflict and alignment (which for some kids may mean the discussion never takes place).

As with all considerations in relation to the best interests of a child, it is important to be guided by an experienced legal practitioner. Should you have any concerns in relation to future parenting arrangements for your child, please contact our Toowoomba family lawyers today to arrange an appointment.