For separating parents, trying to sort out what time the children will spend with each parent or where they may live is not always easy. The Family Law Act states that the most important consideration when making such a decision is what is in the child’s ‘best interests’.
In the event parents can’t agree on Child Custody and the court has to make an order, how much consideration is given to child’s wishes?
The Family Law Act has a number of considerations it must take into account, one of those being any views expressed by the child and what weight should be place on the child’s wish given the child’s maturity or level of understanding.
The Family Law Act does not stipulate a certain age a child must be in order for their wishes to be taken into consideration. The court in previously decided cases will take a child’s wishes into account from about 12 years of age as in most cases children are starting to develop personalities of their own and striking out in terms of independence. The court may also consider a child’s views between the ages of about 10 and 12, depending on the individual child, this will all depend on the maturity of the child and how clearly their views are expressed. The wishes of a child under 10 years old is unlikely to be considered, as it may not be clear to the court whether it actually the child’s views or a parent’s view communicated through the child.
You should be aware that children cannot give evidence in the Family Court, so a child’s wish may be captured in a Family Report, Child Inclusive Report and/or through an Independent Children’s Lawyer if the Court deem necessary.
There are many cases in which the court will consider children’s wishes, however it ultimately depends on the different circumstances such as the maturity of the child’s views, the child’s age and their ability to clearly express their views.
Recently, the Court determined a case where two children (aged 12 and 10) had strong wishes about which parent they would prefer to reside with. The 12-year-old child wished to live with his father, whereas the 10-year-old child wanted to live with her mother. The court decided that the 12-year old was more mature than the 10-year-old but the court saw that she expressed a clear view not influenced by her mother. Both children’s views were heard and the court made an order that the children live with the parent specified, even though the father lived in Brisbane and the mother lived in Adelaide.
At East Coast Family Lawyers, we understand that children’s matters can be complex. It is important to get the right advice as early as you can and focus on what is best for the children in any given situation. If you would like to discuss your personal circumstances, please contact us on (02) 4322 0251 for a no obligation fixed-fee initial consultation.