Are the views of the child considered in family law?

Are the views of the child considered in family law?

A common question in family law parenting disputes is: "Will my child’s wishes be considered?" Unfortunately, there is no clear-cut answer to this question. However, what can be said is that a child’s wishes alone will not determine a parenting dispute.

In some circumstances, a child’s wishes will be taken into consideration and afforded weight by a judicial officer, but ultimately parenting orders will always be made in accordance with what is in the best interests of a child. Read more about what is considered when making parenting orders, in our article “Parenting orders for spending time with children".

When considering what is in the best interest of a child, the child’s ‘views’ or ‘wishes’ may be considered as an additional consideration under the Family Law Act 1975 (Cth) (“the Act”).

How does the court ‘hear’ the views of a child?

The Act outlines how the court may inform itself of views expressed by a child.

The court may inform itself of views expressed by a child:

  • by having regard to anything contained in a report given to the court under Section 62G (2). This generally requires the person giving the report to ascertain the child’s views and include those views in a report; or
  • by making an order for the child’s interests in the proceedings to be independently represented by a lawyer. The Act requires an Independent Children’s Lawyer for the child to ensure the child’s views are fully put before the court; or
  • subject to the rules of the court, by such other means as the court thinks appropriate.

In Australia, it is not commonplace for a judicial officer to speak directly with a child in respect of their views or wishes.  Such information is reported to the court either through a report; a Child’s Wishes/Family Report or a Single Expert Witness Report, generally written by a child psychologist or social worker, or an independent party (an Independent Children’s Lawyer or family consultant).

In accordance with the Act, a child is not required to express their views in relation to a matter.

What weight is attributed to a child’s view or wish?

Again, there is no simple answer to this question. It is largely dependent on the unique circumstances of each matter.

The weight afforded to a child’s view or wish can be dependent on the following factors:

  • The child’s age, maturity and understanding. Generally speaking, an older child’s wish will be given more weight than a younger child, as they will generally be considered more mature and have a greater capacity to have input into decisions that affect them;
  • Whether the child has been influenced by a parent or third party;
  • The strength and duration of the child’s wishes; and
  • The degree of the child’s appreciation of the long-term implications of their wishes.

It is also important to note that a child’s view is only one of the additional considerations found in in the Act, amongst a raft of additional considerations that must be considered together with the primary considerations.

There is often caution surrounding a child expressing a view or wish because:

  • children are often ‘people pleasers’ – especially in a separated family dynamic. Children will tell parents "what they want to hear"’ and not necessarily express the same wish to both parents;
  • children can be influenced by the views of a parent, and therefore the view they express may not necessarily be of their own construction; and
  • children are often not mature enough to be able to form and articulate a well-reasoned view with regard to their future circumstances.

Whilst a child’s view or wishes is a relevant consideration in the making of parenting orders, it will generally not be the only determining factor. It is important to appreciate that what is in a child’s best interest is not necessarily aligned with what a child’s view or wish may be.

Contacting Meillon & Bright

Family Lawyers Perth & Sydney

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The information contained in this article is of general nature and should not be construed as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Meillon & Bright Family Lawyers.

Get in touch with the author:
Chelsea Bech


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