Questions we are commonly asked as a family lawyer include “how will my child’s views be taken into account” and “at what age can my child make their own decision where they live?”
This topic has been highlighted lately with a recent article in the Courier Mail discussing a case where a Family Court Judge listened to the views of a 12 year old boy who expressed that he did not want to see his father in “absolute and resolute terms.” The child believed that his father had abused him, and although it was not found that he was abused, Orders were made that the child does not have to see his father unless he wants to.
Historically, where a child was over the age of 14 the relevant legislation provided that Court should not make an Order contrary to the child’s wishes, except in special circumstances. Under the Family Law Act, the Court must consider any views expressed by the child and apply such weight as is appropriate in the circumstances having regard to the child’s age and degree of maturity. There is no longer a set age at which a child’s views are to be followed.
A child’s views are assessed in the particular circumstances of the case. The Court may consider, for example, whether the views of the child have been influenced by someone else, any protective factors and the desirability of maintaining a long term relationship with a parent with whom a child may have a negative relationship with at that point in time.
Whilst steps are always taken to protect children from Court proceedings, there are times where their involvement is necessary in assisting the Court to determine the appropriate living arrangements for the children. Children are usually interviewed if the parents agree or if the Court orders that a Family Report be obtained. The views of the children are usually ascertained as part of that process. In some cases an Independent Children’s Lawyer is appointed to represent children and put their views before the Court.
It is important to remember that while a child’s views can be an important factor, they do not always determine the decision made by the Judge. The best interests of the child remains the paramount consideration to be determined by the Court having regard to a number of factors relevant to the particular family.
If you require any assistance with your Family Law matter or advice regarding appropriate arrangements for your children, please contact our Family Law team on our Contact Us page.