The paramount consideration in all parenting matters is the best interests of the child. Under section 60CC(2) of the Family Law Act 1975 (the Act) the primary considerations of the Family Court in parenting matters are to consider:
- 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 from being subjected to, or exposed to, abuse, neglect or family violence.
Parents often raise the question as to whether their child's views or wishes will be considered by the Family Court when making parenting orders. Under section 60CC(3) of the Act there are a number of additional considerations the Family Court may consider when making parenting orders in addition to the primary considerations referred to above, including
Please see the article My Child, My Rights for further information on parenting proceedings in the Family Court.
When will my child's views be heard?
There is no firm rule that a child's views must be considered by the Family Court when making determinations about who the child lives and spends their time with.1 The weight that will be accorded to the views of the child is dependent on the age, maturity of the child, how their views were formed and the reasonableness of their views.2
There is no fixed age at which the views of a child are required to be given greater weight by the Family Court. Case law indicates that the views of a child aged 12 and upwards are generally given some weight, however this is entirely dependent on the factors referred to above and fluctuates depending on the circumstances of each case.
How can my child's views be heard?
It is very rare for children to appear in person in the Family Court or to meet directly with a Judge or Magistrate in Australia, although this does occur in other jurisdictions.
In Western Australia, there are three methods most commonly used for the child's views to be heard:
- The appointment of a Family Consultant. A Family Consultant is engaged by the Family Court and will conduct interviews to prepare a report;
- The appointment of a Single Expert Witness pursuant to Division 15.5.2 of the Family Law Rules 2004. The Single Expert Witness is generally a clinical psychologist who conducts interviews and prepares a report which can include recommendations for the future care arrangements of the child. A Single Expert Witness is privately funded by the parties to proceedings; and
- The appointment of an Independent Children's Lawyer. The role of the Independent Children's Lawyer is to represent the child's best interests rather than directly represent the child.
Boldemonte v Boldemont & Anors (2017) FLC 93-763
This recent case concerned two boys aged 17 and 15 who had travelled to New York with their Father. During the trip the Father advised the Mother that he would not be returning to Australia and that the boys had expressed a desire to remain living in New York with the Father. The boys had previously been residing with the Father in Australia. Their 12 year old sister resided with the Mother.
The Mother successfully obtained an interim order for the boys to be returned to Australia pending final determination. The Father unsuccessfully appealed the interim decision to the Full Court of the Family Court and then to the High Court of Australia, citing that the trial Judge did not give the appropriate weight to the views expressed by the children. The High Court asserted that the trial Judges had taken into consideration the views of the children however:
In this case, the High Court of Australia reiterated that although a child's views and wishes can be relevant, they are not the determinative factor and there is no requirement for the court to be bound by those views.
1 Reynolds v Reynolds (1973) 47 ALJR 499.
2 In the Marriage of R (1998) FLC 92-820.
3 Boldemonte v Boldemont & Anors (2017) FLC 93-763 at .
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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