!

NOTICE ALERT IN LIGHT OF COVID-19

WHAT WE PROPOSE AND HOW WE CAN ASSIST

At Watson & Watson our clients come first. Please be assured of our continued dedicated services to all current and new clients.

As we have done in the past, we will continue to offer alternative conferencing methods ie video conferencing, skype or telephone conferences. Reviewing of all documentation provided to us prior to any initial conference will be all inclusive of our set fee. Do not hesitate to contact Shereen Da Gloria on (02) 9221 6011 should you have any concerns.

The Children Don’t Want to Go – What Do I Do? – Does the Family Court Listen to the Children?

27/09/2021

The Family Court of Australia and the Federal Circuit Court of Australia have power to make parenting orders. Parenting Orders can cover many aspects of a child’s life but will most often include Orders in relation to where the children live and how and when they spend time with each parent.  The children’s wishes as to where they want to live and when and how they spend time with the other parent may be different to what the Court Orders require.

What are the Parents Obligations to Make the Child Obey the Orders?

A parent might find him or herself in a position where a child is saying that they do not wish to go and spend time with the other parent or want to spend less or more time with the other parent.  The Family Law Act 1975 imposes an obligation on parents to promote the relationship between the children and the other parent.  The Family Court/Federal Circuit Court regards this as very important.  This creates a difficult situation if the child does not want to go to spend time with the other parent. 

But what should happen when the child refuses to spend time with the other parent. 

Child Refuse to Go – Watson & Watson – Advice and Action

Watson & Watson acted for the mother in a case where the Family Court of Australia had approved Consent Orders in relation to property and parenting.  After the Orders were made, both the mother and the father initially complied with the Parenting Orders but over time the relationship between the children and the father deteriorated.  The father’s living arrangements and lifestyle had changed and the father’s attitude towards the mother changed.  Further the capacity of the mother and father to communicate in relation to what time the children should spend with the father deteriorated to a point where there was no practical communication between the parents in relation to parenting the children. 

Watson & Watson’s advice to our client was that there should be an application to the Federal Circuit Court of Australia to seek a variation of the Orders and that the application should be one where appointment of an independent children’s lawyer was sought. 

Watson & Watson prepared the application and supporting evidence and filed the application. 

What did the Children Want? 

The children acknowledged a relationship with their father but did not wish to spend time with him in accordance with the Orders that had already been made.  They had reached an age where their wishes were to spend some time with the father but not the whole of the time that was set out in the existing Orders.  The children wanted to participate in other activities which were not possible if they complied with the Orders. 

The father could not accept this position and would not agree to the changes that the children wished to have made. 

How Does the Court Find out What the Children Wishes Are?

The Court does not allow a 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.

At what 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 Family Court/Federal Circuit 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 of the views expressed by a child in three main ways:

  1. By having regard to the contents of a Report prepared for the Court.  This could be a Family Report which would usually be prepared by a trained social worker or a qualified psychologist.  
  2. The Court may also Order a Child Dispute Conference before one of the Court’s trained Family Consultants.   At the Child Dispute Conference the parents attend and discuss the matter with Family Consultants.  The Court will read the Report of the Family Consultant and consider the opinion of the Family Consultant.
  3. If the Child Dispute Conference is in the Family Court, it maybe a child inclusive conference and in those circumstances, the children will attend and the Family Consultant will discuss matters with those in attendance but not all together.  Sometimes it may be just the children; sometimes it may be one parent and the children, and sometimes with just a parent or the parents together.
  4. 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.
  5. By other appropriate means as the Court thinks is appropriate in the circumstances.

Outcome

In our client’s case and on the Interim Application that Watson & Watson had prepared, the Court appointed an Independent Children’s Lawyer in respect of the children of the marriage.  The Independent Children’s Lawyer considered the material that Watson & Watson had prepared and filed with the Court and met with the children to ascertain their wishes. 

In this case the Independent Children’s Lawyer formed the view that the children’s wishes were coherent and strongly held. The Independent Children’s Lawyer informed both legal representatives of her view and what was in the best interest of the children and indicated what submissions she would be making when the matter returned to Court.  As a result of this communication, the parties engaged in negotiation of an alternate parenting arrangement for the children and were able to agree on a new set of Consent Orders where the time with the father was reduced and the way in which that time was spent better provided for the children’s overall development. 

The action taken by the mother on the advice of Watson & Watson achieved a positive resolution and what was in the best interest of the children.

Unilateral action by the mother contrary to the existing Orders would have resulted in a breach of the Orders and exposed the mother to a potential Enforcement or Contravention Application with the potential for a costs Order against her.

If you are in the process of making an application for contact orders or wish to change the current contact orders in place to accommodate what is the best interest of your children or what your children have expressed in relation to their contact with the other parent, our experienced Senior Family Lawyers can assist you in navigating what can sometimes be a challenging situation.  Please contact Richard Watson Senior Family Lawyer or his Personal Assistant Shereen Da Gloria to discuss your matter 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.

Related Cases & Articles

Personal Experienced Professional Affordable

Phone 02 9221 6011

Send us your enquiry
Book an appointment Request a quote Send your question
Online enquiry form

Watson & Watson are always available to provide expert legal advice and answer any questions you may have.

All enquiries received will be responded to within 24 hours.

Call: 02 9221 6011