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Will the Court consider my child's views?

Friday 5th of November 2021
By: Rohan Kelly, Associate

I will definitely recommend you and your team to anyone looking for a family lawyer.

My child wants to live with me.  Will the Court consider my child's views?

When considering the best parenting arrangements for children, the Family Law Act directs the Family Court to consider the "best interests" of a child as the paramount, most important consideration. In order to identify what is in the child’s best interests, the Court must consider a range of factors. One of these many factors is the views expressed by the child.

The weight given to a particular child’s views about how they would like to live between their parents’ homes, is entirely dependent on the child’s maturity and their level of understanding. For example, the Court is far more likely to give credence to the views of an emotionally mature 16-year-old, when compared to the views of an emotionally immature 6-year-old.

In determining whether a child is emotionally mature enough to form a helpful view as to their parenting arrangements, the Court will consider whether that child has been influenced by a parent or a third party, the duration and commitment to the view and the child’s insight to the long-term consequences should their view be accepted. The Court will be cautious of adopting a child’s view, if there is evidence of such influence or perhaps even where the reasons for the child’s view is unclear.

It is not unusual for children to tell each parent something different about where they wish to live, particularly when they are not emotionally mature enough to reach their own conclusions.  Therefore, to obtain independent evidence, the Court might refer parents and children to attend upon a Court Child Expert or a Family Consultant to prepare a Family Report. The Family Consultant may consider the child's views depending upon their maturity and understanding, amongst many other factors, to make recommendations about appropriate parenting arrangements for the child. The Court will then consider the Family Report as one part of the evidence of what is in the child's best interests.

In circumstances where there is a risk, such as family violence, drug abuse or mental illness, the Court may appoint an Independent Children’s Lawyer (ICL) to assist.  The ICL might make inquiries with the child’s parents, medical practitioners and teachers. Some ICLs will speak with the children directly if they believe it is necessary and appropriate to do so.

As a general rule, the Courts do not allow children to attend Court to give evidence about their views.  It is rarely in a child's best interests to be put through such an experience, and unlikely to elicit any helpful evidence.

It is important for parents to be mindful that a child’s views expressed to them, will not necessarily be accepted by a Court as determinative. There are a range of factors the Courts have regard to in determining the parenting arrangements in a child's best interests, and their view is only one part of that matrix.

If you would like more information regarding the factors considered by the Court in determining parenting arrangements, including how your child’s views are considered, please contact Coote Family Lawyers on 03 9804 0035 and we will be happy to assist you.

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