The paramount concern of the Court in making parenting orders is the child’s best interests. There are two primary considerations and a variety of additional considerations which the Court must take into account.
The Court is compelled under section 60CC(3)(a) to take into regard your child’s wishes and will place the appropriate weight after having regard to all of the other relevant factors mentioned in section 60CC. Some of the main matters that may affect the weight include:
Other factors that may affect the weight of the child’s views include:
Have an age appropriate conversation with your child. Remember, despite the relationship breakdown between parents, the child’s relationship with each parent can hang in the balance. It is important to be neutral when discussing the other parent and the outcome of the case in front of the child. In most cases, the Courts will allocate a parent that your child “lives with” and a parent that your child “spends time with”, so you could use these terms when discussing the living arrangements with your child. The most important thing is that the child is comfortable and happy moving forward. A child should not need to say anything or make a choice that they do not want to make. If you do discuss family law matters with your child, it is often best not to put them under pressure by asking a direct question. Furthermore, be aware that a child may say something completely different to both of their parents just to please each of them.
The Court will take into account any such means deems appropriate but in particular will seek an Independent Children’s Lawyer or expert’s advice, rely on a Family Report or will have regard to any supplementary evidence such as a parent’s affidavit.
An Independent Children’s Lawyer or ICL is just as it sounds, a lawyer that independently represents the best interests of the child. An ICL will undertake detailed investigations to determine the wishes of the children including meeting with the children, talking to their school teachers or counsellors, arranging evidence of medical, psychiatric or psychological records for example. The Court can appoint an ICL where there are difficult surrounding circumstances such as family violence, mental health issues, a high level of conflict between the parents or a dispute with regards to the Child’s wishes.
A Family Report is a document written by a practitioner after meeting the child and parents that assists the Court in decided what arrangements are best for the children, including the child’s opinion on the matter. Family Reports are commonly ordered by the Court where the age and maturity of the child suggests that he or she will be able to articulate perceptions and wishes. They are also used to assist in cases where child abuse is alleged.
The wishes of a child may also be written into your own affidavit. However, evidence presented only in a parent’s affidavit, where it looks as if a child is just trying to please one parent or a child has been put under pressure with a direct question will hold little weight. As such, when writing an affidavit or instructing your solicitor to do so, ensure that the context of the conversation you had with your child is clearly explained. Particularly that it wasn’t inadvertently or intentionally influenced by yourself or that was prompted by the child themselves and at all times you remained natural and supportive of their choices.