Children in the Family Court - Do Their Views Matter?

Separation is not only a difficult time for the parties involved, but the children as well. Australian family law expresses children’s right to enjoy a meaningful relationship with both parents, including their protection from any form of harm.

How does a Court decide which parent the child spends time with?

Section 60CA of the Family Law Act 1975 sets out the paramount consideration for Courts to act in the ‘best interests’ of the child. Although a Court can rule equal shared responsibility for both parents, there is no rule that says the children must spend ‘50/50’ time with each parent. The court overlooks this notion and determines a child’s best interests by considering the benefit of the child having a meaningful relationship with both parents and their need to be protected from any physical or psychological harm from abuse, neglect, or family violence.

Courts undertake measures to ensure the child is best served by one or both parents. They consider several factors such as the child and parents’ circumstances, and the capacity of the parent to take care of their child to ensure their ultimate safety. If separating parties cannot reach an agreement on parenting and living arrangements, the Court may issue a parenting order that outlines a binding arrangement, whilst ensuring it is made in the best interests of the child.

How are the desires of the child taken into consideration?

The extent to which a child’s desires are taken into consideration by the Court depends on the child’s age, maturity, level of understanding, ability to express their views and the nature of the relationship they have with each parent. These factors may influence a court’s decision on parenting and living arrangements. Whilst children are not called to give evidence during Court proceedings, they can still express their views to the Court through an Independent Children’s Lawyer who represents the child’s best interests. Family report allows a child to articulate their perception in cases where child abuse is alleged. A Family Consultant records their views in a Memorandum which is presented to the courts and may influence a Judge’s decision. Other experts such as psychologists or school practitioners could provide a child’s behavioural and mental report. In the High Court case of Bondelmonte v Bondelmonte 2017, the case demonstrated that children of divorced parents do not have the right to decide which parent they live with by ruling both boys (aged 15 and 17) were not permitted to live in America with their father despite their desire to. A child’s view is but one consideration that is taken into account, but Courts may consider other matters to be relevant when making a decision on a family matter.

If you have any questions about the above, please feel free to get in contact with one of our experienced Family Lawyers at Frank Law on (02) 9688 602 or via frank@franklaw.com.au.

This is not legal advice.