When Will a Childs Wishes be Heard in Family Law Proceedings? Can a Child Tell the Judge What They Want?

01/06/2020

Some parents can have the view that the child or children should be able to decide on parental responsibility, where and with whom the child lives and what time a child spends with a parent.  Lawyers are told “the child wants to live with me” or he does not want to see his father.  A child may not say the same things to both parents and parents may only hear what they want to hear or try to persuade a child to say what they want to hear.  This is not how the Family Court of Australia or the Federal Circuit Court takes the views of a child into account.

It can be the case that the parents may attempt to influence the child or children to express wishes more favourable to one parent than the other or express a wish to participate in the proceedings between their parents and to have their views heard. 

How does the Court approach parenting cases?

The Family Court decides parenting cases by making what is in the best interests of the child as paramount.  The Court will determine what is in a child’s best interests in accordance with the matter set out in S60CC of the Family Law Act 1975. 

The primary considerations for the Family Court are:

(a)       The benefit of a child or children being a meaningful relationship with both of the child’s or children’s parents; and

(b)       The need to protect the child or children from physical and psychological harm from being subjected to or exposed to abuse, neglect or family violence. 

The Court must also look at additional considerations.

When Will the Court Take Children’s Wishes into Account? 

In addition to the Family Court or Federal Circuit Court looking at the primary consideration, the Court will look at additional considerations set out in s60CC(3) and one of those additional considerations include:

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. 

How Does the Court Hear the Child’s Wishes and Point of View?

The Family Law Act recognises that there is a difference between allowing a child to participate directly in the proceedings and allowing an opportunity for a child to express his or her views or have his or her views expressed by another person or have their best interests protected by another person.

The Family Law Act provides that a child’s wishes can be taken into account and in broad terms, the Family Court will take a child’s wishes into account but will give the weight to those wishes which is proportional to the child’s maturity and ability to express his or her wishes.  The Family Court will ultimately make a decision as to what is in the best interests of the child or children and this may not actually accord with the expressed wishes of the child. 

There are a number of methods which allow the Family Court to take into account the wishes of the children and to obtain evidence and material as to what is in the child’s best interests.

The Family Court has power to utilise a range of alternatives either separately or combined to ascertain what the wishes of the child may be.  These include:

1. A Child Dispute Conference - The Family Court receives evidence from a Family Consultant in the Court following a Child Dispute Conference. 
2. Family Reports prepared by a Family Consultant. 
3. Evident from Expert Witnesses.  The Family Court can in some cases take evidence from an appropriately qualified Expert who may be asked to provide evidence on a particular issue.
4. Appointment of an Independent Children’s Lawyer to represent the child and put the child’s view before then Court. 

Children Giving Evidence

The Family Law Act does not allow children to give evidence as a matter of right.  However, leave of the Family Court must be obtained before a child is called as a witness. This rarely occurs.

At Watson & Watson our experienced family law Solicitors can assist you in relation to child/children contact issues or disputes and provide advice on to how to navigate the often times difficulties, associated with fair and appropriate contact as between parents in order to achieve what is in the best interest of the child or children.  Please do not hesitate to contact Richard Watson Senior Family Lawyer or his Personal Assistant Shereen Da Gloria to discuss your concerns and seek timely advice.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 9221 6011.