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When and how are a child’s views or wishes considered?

In Family Law parenting proceedings, the Court has to consider the best interests of the child as the paramount consideration. One aspect of the evidence that the Court considers in determining a child’s best interests is the views of the child.

Views and/or wishes expressed by a child will not be determinative, but based on the age and maturity of the child, his or her views can be influential in a Court’s decision.

It is important to note that even though a child’s views are relevant, the weight given to those views is dependent on the child’s level of understanding and maturity.

Whilst the Family Law Act does not set out a specific age at which a child’s express wishes are given particular weight, generally speaking a Court will place significant weight on the views or wishes of a child who is in their teenage years. The Court will also give considerable weight to the views or wishes of a younger child if that child is mature and insightful.  The Court has held that the circumstances in which the views or wishes are expressed and the particular facts of the case play a large role in determining the weight to be given to such views (SS & AH [2010] FamCAFC 13).

How are the child’s views heard?

The Family Court does not generally allow the direct involvement of children in litigation. Alternative methods are generally considered to be a more suitable way of obtaining the child’s views. These include:

  • A Family Report, where the writer (generally a skilled psychologist or social worker) has met with the parties and child;
  • A Family Consultant from the Court’s Counselling Service who can meet with the parties and provide an assessment orally or in writing to the Court; and/or
  • The appointment of an Independent Children’s Lawyer who can meet with the child to hear their views and wishes. It is important to note that the Independent Children’s Lawyer does not act on the child’s instructions but rather is informed by the child’s views and makes enquiries that help in determining what is in a child’s best interests.

A child cannot be required to express a view, and if he or she does not wish to do so, the Court will need to make a decision in the absence of such evidence.

By Nicholes Family Lawyers

 

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