Does the Court consider a child’s wishes in parenting matters

When we talk to separated parents, we often hear that the children said they want to live with our client. But what weight does a Judge give to a child’s wishes and how do you put those wishes into evidence?

The Court must consider many factors when making a Parenting Order such as:

• The best interests of the child;

• The benefit to the child of having a meaningful relationship with both parents; or

• The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.

When the Court is considering a child’s wishes, these things are relevant:

• The child’s age, maturity, and level of understanding. There is no specific age at which a Court will act on a child’s wishes but it is true to say that a 15 year old’s wishes will generally be given more weight than a 5 year old’s.

• Whether the wishes are those of the child or a parent. Judges understand that children generally love both their parents and will tell their parents what the parents want to hear.

• The child’s appreciation of the outcome if the Court places weight on their wishes and what it would mean to the child if the Court made an Order in terms of their wishes.

The Family Law Act requires a Court to consider the child’s views. But there is no requirement for the Court to act on the child’s views.

Both parents will generally tell the Court what the child has said to that parent in an Affidavit. Unsurprisingly, the parents often report different statements by the children.

In contested parenting matters, the Court often makes an Order for the preparation of a Family Report. This requires the parents and children to meet with a Family Report Writer, who is often a psychologist/social worker who has had special training. The children are encouraged to express their wishes independently of either parent. The Family Report Writer often spends a day with the family and can observe the interactions of the parents with each other and with the children.

The resulting Family Report will contain the observations of the Family Report Writer including any wishes expressed by the children and often makes recommendations about the best interests of the children. The Court will regard what the Family Report Writer says are the children’s views with more weight than what the parents report in their affidavits. However, it is the job of the Court to make the decision about what is in the child’s best interests and that decision may not follow the report or the children’s views e.g., if the Court forms the view that the children were coached about what to say/do by a parent.

The Court may appoint an Independent Children’s Lawyer (ICL) during proceedings. It is the job of the ICL to inform the Court about matters relevant to the best interests of the children and that generally includes the wishes expressed by the children.

So, what does all this mean? The short version is there is no clear answer. If you and your former partner cannot decide what arrangements are best for your children then, your children can express their wishes about where they live/ what time they spend with a parent, but the Court is not bound by those wishes.

If you would like assistance with your parenting matter, please phone us on 07 5458 9000 for a free chat with one of our solicitors.

Want to know more?

If you would like to know more, please phone us on 07 5458 9000 for a free chat with one of our solicitors.

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