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Parenting Orders: Will the Court listen to my Child’s wishes?

For the Parent

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.

Primary Considerations

The benefit of the child having a meaningful relationship with both of the child’s parents; and
The need to protect the child from physical or psychological harm of family violence.

Additional Considerations

Out of the list of additional considerations, section 60CC(3)(a) of the Family Law Act makes reference in particular to “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”.

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:

The degree of emotional and intellectual maturity of the child; for example, the age and independence of your child.
The apparent strength of the child’s wishes; for example, how often they say it and who they say it too (ie. to a teacher, the independent children’s lawyer and the counsellor ect.).
Whether the child’s wishes seem to have any sound or rational base; for example “I want to live with Dad because I can walk to school” or “I don’t want to have to move out of the home I grew up in, I’ll stay with Mum”.
Whether the child’s wishes can be shown to be wholly or partly the result of parental or other family manipulation; for example, if the child has only expressed their wishes privately to one parent or only ever in their presence.

Other factors that may affect the weight of the child’s views include:

Siblings – if two siblings wished to live with different parents, the court may be reluctant under section 60CC(3)(d) to split up siblings
Practicality – Whether it is even possible for the child to live with the other parent (ie. a parents occupation limiting this)

What should I do?

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.

How do I present evidence of my children’s wishes?

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.