The Family Law Act 1975 (Cth) (‘the Act’) provides that when making a parenting order, the ‘best interests’ of the child should be the court’s paramount consideration. The Court will consider the primary and additional considerations as given under section 60CC of the Act. Primary considerations include ensuring that the children have a meaningful relationship with both their parents and the need to protect children from physical or psychological harm, abuse, neglect or family violence. In cases where the primary considerations are in conflict, the Court is required to give greater weight to the need to protect children from harm and this will outweigh the need for a child to have a meaningful relationship with both parents.
The wishes of the child are one of many additional considerations which will turn on the facts of the case. However, when determining the arrangements that will best uphold the child’s best interests, the weight given to their views will depend on the child’s age, maturity and understanding of the issues involved. The case of Bondelmonte & Bondelmonte  HCA 8 demonstrated that the court will consider many factors in ascertaining the child’s best interests – the child’s views being only one of them. Because the court is required to give the child’s views such weight as it considers appropriate, the weight applied is therefore circumstantial and decided on a case-by-case basis. The child’s views are not final.
In the case of Pannell v Pannell, the court considered the youth of the appellant’s children and the father’s severely inappropriate behaviour towards one child. These factors led the trial judge to attach little weight to the children’s wishes, because he was satisfied that they were influenced by their parents. Additionally, the court has held that if both parents offer reasonable homes and comparable standards of excellent childcare, then the child’s level of contentment in one household compared to the other becomes a significant and almost determining factor in deciding which parent the child should live with. Where they can do so while still ensuring the child’s best interests are met, the court will avoid placing a child in a situation of unhappiness.
At Nicholes Family Lawyers, we understand that navigating between arrangements that you think are best, and those that your child thinks are best, can be a challenging task. We can provide expertise in terms of exploring these issues and negotiating appropriate arrangements that best cater to the needs of your family.
By Olivia Cash, Law Clerk