When parents separate, one of the most complex and sensitive issues involves determining parenting arrangements. A common question arises: how much say do children have in deciding where they live or how they spend time with each parent? In family law matters, the court does consider children’s views, but several factors determine the weight given to their wishes.
Key Factors in Considering a Child’s Wishes
1. Age and Maturity
The older and more mature a child is, the more influence their views may have on the court’s decision. For instance, a teenager’s preferences are likely to carry significant weight, especially if they can articulate their reasons. However, younger children’s views can also be taken into account, provided they can express them meaningfully and without undue influence.
2. Best Interests of the Child
The child’s best interests are always the court’s paramount consideration. The court assesses whether a child’s expressed wishes align with their safety, well-being, and developmental needs. If a child’s preferences might expose them to harm or instability, the court will prioritize their protection over their wishes.
3. Independent Representation
In complex cases, an Independent Children’s Lawyer (ICL) may be appointed to represent the child’s best interests. The ICL doesn’t take instructions directly from the child but ensures the child’s views are presented to the court, alongside an independent assessment of what’s best for their welfare.
4. Influence of Parents
The court is mindful of the potential for parental influence on a child’s expressed preferences. If there is evidence that one parent has coerced or unduly influenced the child, the court may investigate further or discount those views to ensure decisions are genuinely reflective of the child’s best interests.
5. Nature of the Case
In cases involving allegations of family violence or child abuse, the court’s focus shifts heavily toward ensuring the child’s safety. While the child’s views remain important, their protection becomes the overriding concern, and their wishes may carry less weight if they conflict with safety considerations.
6. How the Court Gathers Children’s Views
Direct interviews between a judge and a child are rare in Australian family law. Instead, the court typically relies on:
- Reports from Family Consultants: These experts meet with the child and parents to understand the family dynamics and provide recommendations to the court.
- Independent Children’s Lawyers: The ICL presents the child’s views and their best interests to the court.
These professionals ensure that the child’s voice is heard without placing them in the uncomfortable position of directly choosing between parents.
Balancing Children’s Wishes and Their Best Interests
While children’s views are important, they form part of a broader assessment of what is in their best interests. The court’s ultimate goal is to create parenting arrangements that promote the child’s safety, stability, and overall well-being, even if this doesn’t align perfectly with their preferences.
Need Support Navigating Family Law?
If you’re dealing with family law matters involving your child’s wishes, Coastal Lawyers can provide compassionate, experienced guidance to help you understand your rights and obligations. Contact us today to ensure the best outcome for your family.
Written by Coastal Lawyers- Central Coast Family Lawyers
Coastal Lawyers are family lawyers based in Erina, on the Central Coast.
Coastal Lawyers assist family law clients in parenting, property, mediation, dispute resolution, and litigation. We offer the legal advice you expect from a lawyer, along with the emotional support you might not expect.
We are passionate about assisting our clients achieve amicable separations without the need for court intervention through the process of legally assisted mediation.
Our team also frequently appears at the Newcastle Federal Circuit and Family Court of Australia (Newcastle FCFCOA), the Parramatta Federal Circuit and Family Court of Australia (Parramatta FCFCOA), and the Sydney Federal Circuit and Family Court of Australia (Sydney FCFCOA) to represent our clients in more intricate family law matters. This encompasses issues related to family violence, unacceptable risk of harm to children, relocation applications, recovery orders and complex property settlements.
Coastal Lawyers offer a 1 hour Strategy Session for all new family law enquiries at a reduced hourly rate.