One of the more common enquiries received at Coastal Lawyers is about children’s views.

Parents often want to know, how children’s views taken into account in a family law matter and another common question is how old does a child have to be before their views are taken into account?

We explore the views of the children in family law matters below.

Best Interests of the Child is always the starting point.

In a family law matter concerning children the paramount consideration of the Court is the best interests of the child.[1]

In determining this, s 60CC(2) of the Family Law Act 1975 (Cth)[2] requires the Court to consider two things:

1. The benefit to the child of having a meaningful relationship with both of the child’s parents[3] and

2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.[4]

Section 60CC of the Family Law Act 1975 (Cth)[5] provides for many additional considerations, a small example of these are:

  1. Any views expressed by the child and any other factors such as the child’s level of maturity and understanding;[6]
  2. The nature of the relationship that the child has with each of their parents and the extended family;[7] and
  3. The maturity, sex, lifestyle and background of the child.[8]

How old does a child have to be before the court will consider their wishes?

Well there is no set age.

The extent to which they are taken into consideration will depend on the child’s age, level of maturity and level of understanding.

The views of older children are likely to be given more weight than those of the younger children. This is because often with children this age they have a better level of understanding and maturing and can clearly express their views.

Children’s Evidence: Do children give evidence in family law matters?

As a general rule, Children are not called to give evidence in these proceedings,[13].

However, in the rare case where a child is required to give evidence they do so as a vulnerable witness via an Audio-Visual Link (AVL) from another room in the courthouse and are kept out of the courtroom if possible.[21]

How is children’s views obtained if they don’t generally give evidence?

Because there is an exception to the rule against hearsay as stated in s 69ZV of the Family Law Act 1975 (Cth).[20] there are a number of ways that a child’s views or wishes are expressed to the court including:

  1. Through a Family Consultant at a Child Inclusive Conference (CIC). The Family Consultant will then record this in writing and relay it to the court.[14]
  2. The Court may appoint an expert such as a psychologist or psychiatrist who will record the children’s views and relay them to the court.[15]
  3. An Independent Children’s Lawyer (ICL) may be appointed by the court[16] to represent the child’s best interests including conveying their wishes to the court.[17]
  4. A Family Report, s 62G(2) of the Family Law Act 1975 (Cth)[18]
  5. Section 60CD of the Family Law Act 1975 (Cth) states that the Court must consider any view expressed by the child when making its decision.[19]

The Court Orders

The Court will not make orders that in its opinion, are not in the child’s best interest, even if they are the express wishes of the child.[22]

Any wishes of the child that the Court sees as a departure from what is in the children’s best interests will be disregarded.[23]

Cases

Bondelmonte v Bondelmonte [2017] HCA 8

In this case although the child was 16 years of age the Court did not make orders according to the views expressed by the child via the Court appointed expert. In this case the High Court decided that the views of the child are only one factor to be considered when deciding what is in their best interests.


[1] Family Law Act 1975 (Cth) s 60CA (FLA).

[2] Ibid s 60CC(2).

[3] Ibid s 60CC(2)(a).

[4] Ibid s 60CC(2)(b).

[5] Ibid s 60CC.

[6] Ibid s 60CC(3)(a).

[7] Ibid S 60CC(3)(b).

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] FLA (n 1) s 60CE.

[14] Ibid s 60CD

[15] Ibid.

[16] Ibid s 68L.

[17] Ibid s 68LA.

[18] Ibid s 62G(2).

[19] Ibid s 60CD.

[20] Ibid s 69ZV.

[21] Family Law Rules 2004 (Cth) r 15.02.

[22] Bondelmonte v Bondelmonte [2017] HCA 8.

[23] Ibid.