The views of children in Family Law

When a parenting order is made, the guiding principle is the best interests of the child. In determining what is in the child’s best interests, the Family Court takes into account primary and additional considerations found in the Family Law Act. The first additional consideration is any views expressed by the child. The child’s views are weighed by reference to any relevant factors such as their age, maturity or level of understanding. Other factors that will affect the weight given to a child’s views include the need to protect the child or the benefits of keeping them with their siblings.

Where a child expresses a certain view but does not appear to fully understand the situation, a court may give less weight to their views. On the other hand, the court may place a higher value on the opinion of an adolescent child with maturity and awareness of their relationship with their parents. The courts have traditionally held that children’s views should carry significant sway in judicial decision-making. Often they greatly assist the court. However, a child’s views is only one of many additional factors. They are not a decisive factor.

This was recently considered by the High Court in Bondelmonte v Bondelmonte [2017] HCA 8, which reiterated that a child’s views are but one among many additional considerations to guide a court. In that case, the judge identified that a relevant factor to weigh the childrens’ views was the extent to which they were influenced by their father. The court noted that it is not bound by, or even obliged to discover, a child’s views.

Thus while a child’s views can assist the court, they are but one of many additional considerations. They will be weighed according to various factors – most clearly, whether their views correspond with their best interests.

If you have further questions, please contact Matthew Sibley at msibley@franklaw.com.au. 

This is not legal advice. 

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