Are children's wishes taken into account in family law proceedings?

Children are entitled to have their views heard and considered as part of the decision making undertaken by Courts in determining their future living arrangements. The Family Law Courts offer a number of avenues for children to express their views. The paramount consideration is the best interests of the children. This does not always align with their wishes.  

Can my kids decide who they live with?

The views expressed by a child will rarely be the determining factor.  The weight to be given to the views of a child may depend on the age and maturity of the child.  The views of a 14 year old may be more informed than a 6 year old.  It is not appropriate to expect a 6 year old to appreciate the consequences of a view they may express, due to their young age.

My kids know who they want to live with, why should a Judge decide for them?

If parents cannot agree, they are asking a Judge to make that decision for them.  A Judge will firstly consider:

1.       the benefit to the children in having a meaningful relationship with both parents; and

2.       any risk of the children being exposed to harm, abuse or violence by a parent.   

In the event there is any risk of harm to the child in either parent’s care, the need to protect that child from harm will outweigh the benefit of the child’s relationship with that parent.

Other factors to be considered include any expressed views of the children, the nature of the child’s relationship with their parents, the effect of any change in circumstances upon the child.

How will the Judge know what my children’s views are?

In some cases, a Judge may appoint an Independent Children’s Lawyer (ICL) to represent the children’s interests. An ICL may meet with them to talk about Court proceedings, answer their questions and, seek their views  

Having considered the evidence available and (where appropriate) the children’s wishes, the ICL will make recommendations to the Judge.

Throughout the litigation process, the parents and children may meet with a Family Consultant (a Court appointed psychologist or social worker). They will make an assessment in relation to the issues between the parents and ultimately prepare a ‘Family Report’ for the Judge, which makes recommendations about orders that operate in the best interests of the children. The Family Consultant may ask the children their views, and include these in their report. 

You should obtain advice from a family law specialist if you are negotiating parenting matters, or if you are involved in family law proceedings.