I am going through a separation and my child has said they want to live with me. Do my child’s views matter?

The short answer to this question is yes, however there are several other factors that the Court must consider in addition to the views of the child and the weight to be given to the child’s views.

The Family Law Act 1975 (Cth) places a child’s “best interests” as the primary consideration in parenting cases. The safety of the child and the benefit of the child enjoying a meaningful relationship with both parents are also important considerations.

Section 60CC of the Family Law Act 1975 details the relevant factors that the Court must consider in determining what is in the child’s best interest. The types of considerations include;

• The child’s safety, developmental, psychological, emotional and cultural needs;
• The views of the child;
• The capacity of the person/s who has parental responsibility of the child to provide for their developmental, psychological, emotional and cultural needs;
• The benefit of the child being able to have a relationship with both parents or people who are significant to the child (such a grandparents);
• Any other relevant circumstances;
• Family violence considerations; and
• Cultural considerations, (e.g. the right to enjoy Aboriginal or Torres Strait Islander culture).

While the child’s views are one of the relevant factors, it is important to note that these views may not always align with what is in the child’s best interests when considering these views in the context of the other section 60CC factors.

In deciding upon the weight to give to a child’s views the Court has to consider the following:

• The age and maturity level of the child.
• The child’s understanding of the matter; and
• How their view was expressed and formed, for example, was the child influenced into expressing those views.

For example, the views of a mature teenager who has consistently expressed a strong view about the parenting arrangement, will be given more weight than a young child with a limited understanding of the situation and who’s views may have been influenced.

Obtaining a Childs Views: Family Reports and Child Impact Reports

There are two primary ways to present a child’s view to the Court which are in the form of a family report and a child impact report.

In contested parenting cases, it is common practice for the parties to obtain an independent family report or child impact report. These reports are prepared by a third party such as a psychologist or counsellor. Typically, the report writer will interview each parent and the children separately, they may also seek to observe how the child/children interact with each parent. During these interviews the child can express their views to the report writer. The report writer will also make observations and include recommendations in their report as to arrangements that would be in the best interests of the child.

Independent Children’s Lawyer

A further way that a child’s views can be obtained and provided to a Court is through an Independent Children’s Lawyer (ICL). In complex and high conflict parenting cases, such as cases that involve a risk to the children, like family violence or abuse, an ICL can be appointed by the Court. The role of an ICL is to advocate for the child’s best interest and provide the court with an unbiased perspective as to the parenting arrangements. The ICL is required to meet with the child and give the child the chance to voice their views, (there are some exceptions to this requirement). If a child has expressed views to an ICL, the ICL is legally required to inform the Court of these views.

How the Court Considers a Childs Views

Once a child’s views have been obtained, the court has to consider what weight should be given to them in context of the overarching consideration, which is what is in the best interests of the child. It is important to understand that each case is unique and the weight a court will give to a child’s views will depend on the circumstances of that particular case.

Conclusion

The Court can take a child’s views into consideration in parenting cases. In doing so, the Court must consider what weight to give to the child’s views, as well as considering what is in the child’s best interests with regard to section 60CC factors.

Navigating a separation as a parent can be a difficult and emotional time. Our experienced family law team at Bell Legal Group are here to support you.

If you need legal assistance with a parenting matter, please contact our office on (07) 5597 3366 and get the support and advice you need.

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