How does the Family Court decide if the parents cannot agree where the children should live?

18/06/2015

Often a parent, grandparent or person who is concerned as to the welfare of the children who are caught up in the breakdown of the marriage of their parents approach Richard Watson or Dennis Grant for advice as to how best to protect the children.  One of the main concerns is how the child or children involved will spend time with each of the parents and other important members of the extended family. If you have any concern would you please telephone to discuss your concerns with us.

The Family Court of Australia and the Federal Circuit Court of Australia have power to make parenting orders. Parenting Orders can cover many aspect of a child’s life but will most often include Orders in relation to where the children live (with which parent or shared arrangements) and how and when they spend time with the other parent. Issues arise as to the children’s wishes as to where they want to live and whether or how they want to spend time with the other parent or other important person such as a grandparent.

A parent might find themselves in a position where their child is saying that they do not wish to go and spend time with the other parent.  Often a parent accepts the word of a child and decides not to send the child to spend time with the other parent.  The obligations on a parent includes the obligation to promote a relationship between the children and the other parent.  The Court regards this as very important.  It is inappropriate to accept the word of a child and take the matter into your own hands having regard to that child’s view as expressed to you.  However, there are things that can be done.

How does the Court deal with the wishes of the children?

The Court does not allow the child to participate in the proceedings between their parents in the same way as the adult parents participate in the case before the Court. The Court has available to it methods and procedures that allow the Court to be informed of the children’s wishes.

Parents often ask “at what age” can or will a child’s views or wishes be taken into account by the Court. There is no exact age set out in the Family Law Act. The Court will give appropriate weight to the child’s wishes taking into account the maturity of the child. The Court is likely to give more or significant weight to the wishes of a teenager rather than a younger child. The Court may give weight to the wishes of a young child if the Court is of the view that the child is mature and expresses his or her view rather than repeating the view of one or other of the parents.

The Family Law Act requires the Court to consider any views expressed by a child in deciding whether or not particular parenting orders should be made.  A Court can inform itself with the views expressed by a child in three ways:-

  1. By having regard to the contents of a Report prepared for the Court.  This could or a Family Report which would usually be prepared by a trained social worker, a qualified psychologist. The Court may also Order a Child Dispute Conference before one of the Court’s trained Family Consultants.  The Judge will read the Report and consider the view of the Family Consultant; and/or
  2. By making an Order that the child or the children be separately represented by a lawyer known as an Independent Children’s Lawyer (ICL). The ICL will meet with the children and listen to what they have to say and determine what the children’s views and wishes are in relation to the issues involved. The ICL has to present to the Court what the ICL thinks is in the best interests of the children and does not simply follow the children’s instructions; and/or
  3. By other appropriate means as the Court thinks is appropriate in the circumstances.

Dennis Grant is an experienced solicitor dealing with the difficult questions relating to the children and how the important people in the children’s lives as such as each parent and the grandparents or other person will have time with the children.  If you have any concerns please contact Richard Watson or Dennis Grant.

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