Separation is a difficult time for everyone involved. The breakdown of a family creates much stress and anxiety for all parties involved, especially the children. Whilst parents try and protect their children from unpleasant behaviour during divorce proceedings, it is often difficult to do so. They are often torn between parents, are placed in precarious living situations and often feel they lack a voice in what’s occurring.

Despite this, parents usually want to ensure the children’s wishes are considered in terms of parenting. To determine where the children are to live, usually parenting orders or parenting plans are made. A parenting order is a order made by a court to arrange where a child is to live and how they may spend time with both parents.

In making a parenting order, the court considers numerous factors, with the primary considerations being:

  1. The child’s right to have a meaningful relationship with both parents.
  2. The child’s right to be protected from harm.

There is also a list of sixteen additional factors which are considered by a court when determining a child’s living arrangements, including:

  • The nature of the relationship of the child with the parents and/or other persons (grandparents, relatives).
  • The extent to which the child’s parents have taken or failed to take the opportunity to spend time with the child.
  • The extent to which the child’s parents have fulfilled their obligations to meet the child’s needs.

 

How Much Weight is Given to the Childrens’ Views

The child’s wishes are one of these additional factors. There is a common misconception that a court automatically takes this into account. Many people also believe there is specific age when a child’s views are given greater weight by the court when making parenting orders. This is not true. A child does not get to choose their living arrangements.

Furthermore, there is never a guarantee that a Court will give much weight to a child’s views when determining what is in the best interest of the child.  These considerations are made on a case-by-case basis (Bondelmonte v Bondelmonte [2017] HCA 8). However, it must be noted further weight may be given to a child’s views based upon their age and maturity, level of understanding, and whether they have been influenced by another person in forming their views.

Additionally, the older and more independent a child becomes, it becomes less likely that the court will make an order which is contrary to their views. For instance,  when a child reaches their mid- teens, they are usually at a point where they are more independent and can physically place themselves with who they want to live with. Historical cases suggest that where a child is over the age of 14, the Court has not made an order contrary to the child’s wishes.

Several additional considerations a court will review when deciding whether to consider children’s views include:

  • The strength of the child’s views and how long they have been held; and
  • The extent to which the views are based on emotional attachments rather than a considered and logical viewpoint; and
  • The extent to which the child’s views are well thought through; and
  • Whether there was any pressure on the child to form the views, intentional or not.

 

How Does A Child Express These Views?

A child can express these views in numerous ways, including:

  • Ordering a Family Report:

A child can express these views about their living arrangements through an interview with a family report writer/ Family Consultant (who is usually a trained counsellor or psychologist). This individual’s job is to assess the relationship of the child to all parties involved.

During this interview, the family report writer will also ask the child their wishes on their living arrangements. They will also pose questions to the child to assess their maturity and understanding. The family report writer will also interview each parent who will express their own views of their children.

After the writer has interviewed all parties, they will then create a ‘Family Report’. This report assists the parties and the court in determining the best living arrangements for the child.

  • Appointing an Independent Children Lawyer (ICL):

This ICL is usually appointed to represent the best interests of the child in court in complex cases. However, it must be noted that unlike other lawyers, an ICL does not act on the child’s instructions. Rather, the ICL considers the arrangement and makes their own assessment of what is in the child’s best interests. In doing so, they may or may not share the position of the child.

 

Case Study:

The case of Kagan & Earle [2013] FMCAfam 88 is an example of where the Court does not give much weight to the views of the child. In this matter, the Court held the Family Law Report was unconvincing in suggesting the child favoured the mother. The Court also found that the mother’s changing proposals for living and schooling was unstable and unsatisfactory.