Many people believe that the Family Court will have regard to a child’s wishes regarding their choice of who they live with and/or where they live. This is only part of the story.
Section 60CA of the Family Law Act provides that in deciding what orders the court will make in relation to a child “the best interests of the child” is the paramount consideration.
The primary considerations for the court are:-
- the need to protect the child from harm; and
- the benefit to the child of having a meaningful relationship with both of the child’s parents.
Secondary considerations are:-
- views expressed by the child;
- the nature of the relationship the child has with each of their parents and extended family; and
- the maturity, sex, lifestyle and background of the child.
The weight to be attributed to any wishes expressed by a child will depend on the child’s age, maturity, level of understanding and ability to express their views. The wishes of younger children are usually given less weight than those of children in their teenage years. It is important to understand that the court is not required to make orders that adopt a child’s wishes and the court may depart from the views expressed by a child in circumstances where it is determined that such a departure is in the child’s best interest.
This was recently considered in the High Court in Bondelmonte [2017] HCA 8 where, notwithstanding the child in question being 16 years of age, the court did not make parenting orders adopting the views the child expressed to the court appointed expert. The High Court specifically noted that a child’s views:-
“…are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests”,
and that the court will:
“take into account not only the views expressed by the child but also any factors… that the court thinks are relevant to the weight it should give to the child’s views. The factors that the provision gives as relevant are the child’s maturity or level of understanding but plainly, the court may consider other matters to be relevant”.
It is important to remember that the Family Court proceedings do not exist in a vacuum. Each family dynamic is unique and, accordingly, each child’s views will ultimately be considered in a context of their individual circumstances. For more information please contact our team.
Paul Pritchard
