My Children Wanted to Live with Me - When Will the Court Listen to the Children

12/11/2019

Parenting cases in the Family Court of Australia and Federal Circuit Court are about children however the children are not the parties to the proceedings.  The parties will be their parents.  Children do not participate in the proceedings by having a lawyer to tell the Court what their position is and cannot (in almost all cases) attend Court to tell the Judge what their wishes are. 

Children’s Wishes – At What Age Can the Children have a Voice?

Parents often ask “at what age” can or will a child’s views or wishes be taken into account by the Court. There is no exact age set out in the Family Law Act. The Court will give appropriate weight to the child’s wishes taking into account the maturity of the child. The Family Court is likely to give more or significant weight to the wishes of a teenager rather than a younger child. The Family Court may give weight to the wishes of a young child if the Family Court is of the view that the child is mature and expresses his or her view rather than repeating the view of one or other of the parents.

How Does the Court Take Account of the Wishes of the Children in Parenting Proceedings?  How will the Children’s Views be Made Known to the Judge? 

The Family Law Act requires the Family Court and Federal Circuit Court to consider any views expressed by a child in deciding whether or not particular parenting orders should be made.  A Court can inform itself with the views expressed by a child in three ways:

  1. By having regard to the contents of a Report prepared for the Court.  This could be a Family Report which would usually be prepared by a trained social worker or a qualified psychologist. The Court may also Order a Child Dispute Conference before one of the Court’s trained Family Consultants.  The Court reads the Report and considers the view of the Family Consultant.
  2. By making an Order that the child or the children be separately represented by a lawyer known as an Independent Children’s Lawyer (ICL). The ICL will meet with the child/children and listen to what they have to say and determine what the child’s views and wishes are in relation to the issues involved. The ICL has to present to the Court what the ICL thinks is in the best interests of the child and does not simply follow the child’s instructions.
  3. By other appropriate means as the Family Court and Federal Circuit Court thinks is fitting in the circumstances. 

In the case of Boldemont and Boldemont (2017) the High Court of Australia was dealing with an appeal in relation to an international Parenting dispute between one parent who resided in Australia and the other parent who resided in the United States.  The Full Court affirmed the position that the wishes of the children “are but one consideration of a number of considerations to be taken into account in the overall assessment of the child’s best interests”. 

The Family Court and Federal Circuit Court will take into account not only the views expressed by the child/children but also any other factors that the Court thinks are relevant to the weight it should give to the children’s views.  The maturity or level of understanding of the child/children is something that the Court will consider. 

Caution should be taken not to influence or encourage your child/children as to what they should say as family law consultants are adept at picking up and ascertaining what the real intentions are and this could reflect poorly on your matter.

The position ultimately is that the child/children’s wishes will not determine what Order a Court should make.  The child/children’s wishes are a factor that the Court takes into account together with other important pertinent factors in making the overall decision. 

If you are embroiled in a contact dispute with your estranged wife or partner and seek advice in relation to the contact issues or are unsure whether your child/children’s views regarding contact should or would be considered, please contact Richard Watson Senior Family Law Solicitor or his assistant Shereen Da Gloria to discuss your matter and seek appropriate timely advice in relation to this important matter.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.

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