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July 5, 2016
How a Child’s Wishes are Weighed Against Best Interest

The one question all parents ask themselves when separating or going through a divorce is, ‘Who will my child (or children) end up living with?’

It’s a complex issue that can require a ruling from the Family Court in the form of a parenting order.

The Court’s main responsibility when issuing such an order is to do so with the best interests of the child in mind. Typically, the Court will mandate an equal shared parental responsibility arrangement, except in instances where child abuse or violence is a known factor.

Though it is important to understand that an equal shared parental responsibility arrangement may not grant parents the right to spend equal amounts of time with their child — it’s more that each parent has an equal or near equal say on important issues affecting the child’s upbringing.

Can My Child Decide Where They Want to Live?

In certain circumstances, yes. Children, typically in their early teens, can make their wishes known as to which parent they would like to live with. However, a child’s age is not the sole determining factor and the Court does acknowledge a correlation between age and emotional development.

In addition to giving due consideration to a child’s age, the Court will take into account a child’s understanding and level of maturity when determining a parenting order.

The older and more emotionally developed a child is, the more likely it will be that the child’s own views will have a significant bearing on the outcome of the proceedings.

For example, the views of a 14-year-old will be given more weight generally compared to any expressed by a nine or 10-year-old. And for the sake of practicality, it may be more difficult for the court to impose a parenting order that is at odds with a 14-year-old’s own wishes.

Other Practical Considerations

To ensure the practicality of a parenting order, the Court will also look at:

The distance between each party and where they live, and

The impact that ‘equal time’ or ‘substantial and significant time’ will have on the child

Along with each parent’s ability to:

Contribute to the upbringing of the child

Communicate with each other as necessary to uphold the order

Resolve any difficulties with the proposed arrangements, and

Make sure the arrangement is continually in line with the child’s best interests

In addition to the above, the Court may also take any number of other considerations into account if they are deemed to be relevant.

How Does the Court Determine a Child’s Wishes?

When issuing a parental responsibility order, the Court does not usually hear from children directly, though children can make their views known via a family report.

This report is usually written by an independent family consultant with no ties to the parties involved and each parent may be interviewed with regards to what they think their child’s wishes are when and if the need arises.

Lastly, a Single Expert Witness — such as a qualified child psychologist or psychiatrist — may be called upon to conduct a more thorough report on the family’s dynamics. These findings can then be presented to the Court and considered accordingly.

If you require legal advice on a parenting order and wish to speak to one of our experienced solicitors, please contact Sue Holgate, Partner at LBH on sholgate@lbandh.com.au