If you are experiencing a family breakdown, it is likely that you are facing one of the most challenging and stressful times in your life. It is important to remember that this stress and grief is not only limited to you and your former partner or spouse, but also extends to your child.
Children navigating a family breakdown may experience unexpected changes to the living arrangements they have been accustomed to and face uncertainty as to what will happen to them and each of their parents in the future.
Although parents wish to shield their children from the 'nitty gritty' of court proceedings you will no doubt want to understand whether your child's views and wishes will be taken into account and whether they will get to 'choose' where they want to live.
Section 60CA of the Family Law Act provides that in deciding what orders the Court will make in relation to a child, the "best interests of the child" is the paramount consideration. In determining what is in a child's best interest s60CC of the Family Law Act requires the Court to take into account primary considerations such as:
- the need to protect the child from harm;
- the benefit to the child of having a meaningful relationship with both of the child's parents;
and secondary considerations such as:
- any views expressed by the child;
- the nature of the relationship the child has with each of their parents and extended family;
- the maturity, sex, lifestyle and background of the child
The extent to which a child's views or wishes are taken into consideration by the Court and the weight to be attributed to those wishes will depend on the child's age, maturity, level of understanding and ability to express their views. Accordingly, whilst there is no set age that a child must be in order for their views to be taken into consideration, the views and wishes of younger children are likely to be given less weight than those of children in their teenage years.
Whilst children are not called to give evidence during court proceedings, there are a number of ways in which a child may express their views or wishes to the Court. This includes:
- Expressing their views to the Family Consultant at a Child Inclusive Conference. The Family Consultant will then record the child's views in a Memorandum which is provided to the Court.
- Expressing their views to a Court appointed Expert such as a psychiatrist or psychologist. The Expert will then record the child's views in a Report which is provided the Court.
- Expressing their views to the Independent Children's Lawyer who may be appointed by the Court to represent the child's best interest. The Independent Children's Lawyer will then convey the child's views and wishes to the Court.
It is important to note that the Court is not required to make orders that adopt a child's wishes and may depart from the views expressed by a child in circumstances where it determines that such a departure is in the child's best interest.
This was recently considered by the High Court in Bondelmonte  HCA 8 where notwithstanding the child in question being 16 years of age, the Court did not make parenting orders adopting the views he had expressed to the Court appointed expert. The High Court specifically noted that a child's views "are but one consideration of a number to be taken into account in the overall assessment of a child's best interests" and that the Court will "take into account not only the views expressed by the child, but also any factors...that the Court thinks are relevant to the weight it should give to the child's views. The factors that the provision gives as relevant are the child's maturity or level of understanding, but plainly the Court may consider other matters to be relevant."
It is also important to remember that Family Court proceedings do not exist in a vacuum and that as children get older and more independent they are likely to "vote with their feet" and make their wishes known to their parents. Each family dynamic is unique and accordingly, each child's views will ultimately be considered in the context of their individual circumstances.
The solicitors at Swaab are Accredited Family Law Specialists and Annette Wilson is listed in Doyles Guide as a Recommended Lawyer in the Parenting and Children's Matters Category. We are available to provide expert advice and assistance in parenting disputes no matter the complexity.
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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.