Separation can be a difficult and confusing time for children, and they will sometimes express views about who they want to live with or what they want. This often leaves parents wondering “does the court give any consideration to my child’s wishes?”
What are the considerations of the Family Court in parenting matters?
When the Family Court is determining what is in the best interest of the child in parenting disputes, they consider two primary factors:
- The benefit of the child having a meaningful relationship with each parent; and
- The need to protect the child from harm.
Under section 60CC (3) of the Family Law Act 1975 (Cth), a judicial officer considers a number of other factors including “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”.
There is no legislative requirement for a child to express their views during family court proceedings, but if provided, proper, genuine and realistic consideration of these views must be applied (Bondlemonte & Bondelmonte [2017] HCA 43).
In certain circumstances, the judicial officer will also request for the child’s view to be provided.
How are the child’s views ascertained?
It is not appropriate for the child’s views to be ascertained in the court room.
Instead, the child’s views can be obtained in one of the following ways:
1. Family Consultant Report.
Family Consultants are psychologists or social workers employed by the Family Court of Western Australia with a background in child and family disputes. The Family Consultant will interview the child to determine their views and then prepare a report for the judicial officer.
2. Single Expert Witness Report.
A single expert witness is a professional who is jointly appointed to provide their expert opinion on a number of issues. The expert will meet with the child, parents, important figures in the child’s life, and relevant professionals such as the child’s therapist. The expert will then collate the information and provide a report to the judicial officer.
3. An interview with an Independent Children’s Lawyer.
How much weight does the Family Court assign to the child’s view?
Once the children’s view is ascertained, the judicial offer may use this view to determine where issues in dispute. In Fitzgerald and Robinson (1978) FLC 90-401, the court held “in a case where there is little to choose between the competing proposals of the parents, a well-founded expression of the child’s desires can frequently be the determining factor in resolving the issue of the child’s placement”.
However, the weight assigned to the child’s view will vary depending on the child’s age, maturity, level of understanding and other relevant factors. The single expert witness report will often assist the judicial officer in assessing if the child is able to form an independent mature view.
In Bondlemonte & Bondelmonte [2017] HCA 34, the court held that the 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.” In this case, the primary judge determined that the father’s influence over the children’s views was a relevant factor, and, as such, little weight was provided to the children’s views.
Conclusion
A child’s views will be considered by the court when provided or requested by a judicial officer. The child’s views can be ascertained through a family consultant, single expert witness or independent children’s lawyer. When determining the weight to be assigned to the child’s views, the judicial officer considers a number of factors such as age, maturity, level of understanding and parental influence.
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