A Child’s Voice or a Child’s Choice? Children's Wishes in Family Law Matters
If you are a parent who has recently separated from their partner and you have children with them, you may be starting to navigate how to put some care arrangements in place for your children. Or, you may have been separated for some time and are considering pathways to resolve your current parenting dispute, or looking to what future arrangements will be best for your children.
What arrangements are in the children’s best interests?
This question forms the framework of what the Court needs to decide when making parenting orders. While not every parenting dispute may be litigated before the Court, when negotiating parenting arrangements either between parents directly or with the assistance of lawyers, we must use the family law legislation, just as the Court does, as a guideline to help determine what arrangements are suitable.
There are a number of factors which the Court must consider when making orders about the arrangements for children, which are defined in the Family Law Act 1975 (Cth) (the Act).
Under the Act, the Court must regard the “best interests” of the child as its paramount consideration.
Legislative changes to the Act, which came into effect in May 2024, provided significant amendment to section 60CC of the Act which is about “How a Court determines what is in a child’s best interests”. Rather than having primary and secondary considerations (which was the old framework), the Court now determines the best interests of the child through a non-hierarchical structure.
In the pathway for considering what arrangements are in the best interests of the child, the Court must consider the following six factors which can broadly be categorised as follows:
What arrangements promote safety (both for the child and for each person caring for the child).
Any views expressed by the child.
The developmental psychological emotional and cultural needs of the child.
The capacity for each person who has or is to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs.
The benefit of the child having a relationship with their parents and other people who are significant to the child, where it is safe to do so.
Anything else that is relevant to the particular circumstances of the child.
Where a child is an Aboriginal or Torres Strait Islander child, the Court must also consider a 7th factor, being broadly:
The child's right to enjoy their Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary to connect with, explore to the full extent, and develop a positive appreciation for that culture. The Court must also consider the likely impact any proposed parenting order will have on this right to culture.
Therefore, any views expressed by the child must be considered by the Court in determining their arrangements.
Determining and Assessing a Child’s Wishes
Despite the Court having an obligation to consider any wish of a child (along with the other factors listed above that they must consider), not every wish expressed by a child will be followed, and may or may not be given significant weight, depending on the particular circumstances surrounding that child.
Many parents understandably ask, at what age can a child’s wishes be considered?
The short answer is, there is no set age in which children's wishes are given significant or determinative weight. Of course, a strict reading of the Act is that the Court must consider any “views expressed by the child”. Notwithstanding this, the Court may place more weight on a teenager’s views and wishes opposed to that of a very young child. However, that is not to say that a young child's views will be dismissed by the Court.
Young children in particular should not be granted the opportunity by the parents to try and dictate their parenting arrangements. This is because generally, children are not likely to have the objective capacity to consider what is in their best interests, and are focused on their own wants.
However, as children age and mature, their preference as to their parenting arrangements are likely to hold a greater amount of weight. In particular, the Courts do recognise that once children reach teenage years in particular, it is far more difficult for parents to get their children to cooperate with arrangements that they do not agree to.
The Court is required to consider all of the six factors in a holistic way when determining what arrangements are in the best interest of a child, including their wishes.
Role of Family Consultants and Independent Children’s Lawyer’s
In assisting the Court to determine the views and wishes of a child there are a number of mechanisms available to the Court, such as the appointment of an Independent Children's Lawyer and the Family Report/ Child Impact Report process.
Independent Children's Lawyer (ICL)
The Court has the power to appoint an ICL under section 68L of the Act, on its own volition or by application.
An ICL is usually appointed by the Court upon application by one of the parties where one or more of the following circumstances exist:
there are allegations of abuse or neglect in relation to a child.
there is a high level of conflict and dispute between the parents.
there are allegations made as to the views of a child, and the child is of a mature age to express their views.
there are allegations of family violence.
serious mental health issues exist in relation to one or both of the parents, or the child, and/or.
there are difficult and complex issues involved in the matter.[1]
Under the Act, an ICL has an obligation to meet with the child that they are appointed to represent (unless an exception applies).
The ICL is obligated to consider the views of the child, but ultimately their role is to provide an independent perspective on what arrangements would be in the children’s best interests.
Family Consultants – Family Reports & Child Impact Report
In assisting to determine the children’s views and / or what arrangements are in the best interests of the children, the Court can make an order for the parties to the proceedings and the children subject to the proceedings to attend upon a Family Consultant for the purpose of preparing a Family Report or Child Impact Report.
A Family Consultant is a practitioner that is either a psychologist or social worker who has specialist knowledge in child and family issues after separation and divorce.
The role of a Family Consultant is to prepare a Family Report or Child Impact Report that assesses the family and provides recommendations. A Family Report is a longer style report, and a Child Impact Report is a shorter style report.
Generally, the Family Consultant will gather information about:
the issues in dispute
past and present parenting arrangements
the parenting capacity of each party
the children’s relationships with significant people
the children’s wishes and views, and
any risks to the children.[2]
To gather this information the Family Consultant will interview the parties and the children (provided they are of an appropriate age to engage in an interview). The Family Consultant may also have ‘observation sessions’ between the children and the parties and report on those observations and interactions.
A Family Consultant can be a Court appointed practitioner or can be a private practitioner that meets the requirements to be a Family Consultant. If a Family Consultant is an employee of the Court, then there is no cost to the parties to attend upon them. If the Family Consultant is an approved private practitioner, then there is a cost associated with their report.
A Family Report or Child Impact Report is a practical way for the Court to be provided with independent evidence about the children’s views and wishes, along with the other relevant factors that the Family Consultant can consider and report upon.
What’s next?
In summary, the children subject to the proceedings do have a voice, and their wishes must be considered by the Court. However – the children’s wishes are not necessary the determinative factor about what arrangements will be put in place for them. The Court will consider their wishes alongside the other factors and circumstances of that family, in determining what arrangements are in the best interests of children.
If you have recently separated, or you are experiencing difficulties in discussing parenting issues with your former spouse or the parent of your child/ren, our Family Law team can provide trusted and tailored advice about negotiating parenting arrangements for your individual family situation.
Ivy O’Dwyer
Associate
T 03 5226 8582
E iodwyer@ha.legal
Tara Paatsch
Principal Lawyer
M 0412 660 842 | T 03 5225 5254
E tpaatsch@ha.legal
Bridgette Kelly
Principal
M 0438 714 965 | T 03 5225 5275
E bkelly@ha.legal
[1] Federal Circuit and Family Court of Australia: Independent Children’s Lawyer
[2] Federal Circuit and Family Court of Australia: Family Reports FAQs
