When can my child decide?

By 20 April 2017Family Law

When can my child decide when they should see the other parent?  This is a frequently asked question that my family law clients ask.  The answer is that there is no magic age.   The age at which a child can decide the amount of time they spend with each of their parents will depend on a number of factors.

Under the Family Law Act 1975 (“the Act”), the court is only able to make orders in relation to children who are under the age of 18 years.  When making parenting orders, the court must treat the best interests of the child as the paramount consideration.  Section 60CC of the Act sets out the various factors that are taken into account when determining what is in a child’s best interests.

Children cannot be forced to express a view but where a child does express a view, the court is required to take those views into account under s.60CC(3)(a).

Section 60CC(3)(a) requires the court to consider  “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.”

A parent can be excused for thinking that if their child is telling them that they don’t want to see the other parent as much, or even at all, then that is the end of the matter.  This is not the case.   Whilst the court will certainly take a child’s expressed view into account, the court must look at the child’s expressed views in the context of other matters including the child’s maturity or level of understanding.

Generally speaking, the older the child and the greater the level of understanding that the child has, the more weight the court is likely to place on the child’s wishes.

The Court can inform itself of the views of a child by:

  • Obtaining a report by a counsellor, psychologist or psychiatrist. The report writer usually interviews all the relevant parties, including the children and gives the child an opportunity to express their views;
  • Making an order for the appointment of an Independent Children’s Lawyer who then represents the interests of the child in the proceedings;
  • Looking at other sources of evidence including affidavits from parents, teachers or counsellors.

In the recent decision of Bondelmonte v Bondelmonte [2017] HCA 8, the High Court considered the case where a father had taken his 14 and 16 year old boys to New York for a holiday.  He then refused to return the children to Australia.  The mother applied to the court for the children’s return.  The father argued that the children had expressed a desire to live with him in New York and therefore, they should be permitted to stay.  The court considered that even if the children had expressed a desire to stay with their father in New York, that view was likely to have been heavily influenced by their father and accordingly, less weight should be given to those views.    An order was made requiring the father to return the children to Australia on an interim basis.  A full family report was then ordered to assist the court in determining what parenting orders should be made on a final basis.

It should be remembered that a child’s expressed view is only one factor that the court should consider when determining what is in the child’s best interests.  Other factors listed in s.60CC of the Family Law Act include:

  • The relationship that the child has with each parent or other significant person (such as grandparents);
  • The likely effect of any change in the child’s circumstances, such a separation from a parent;
  • The practical difficulty and expense of a child spending time with and communicating with a parent; and
  • The capacity of each parent to provide for the needs of the child, including emotional and intellectual needs.

It is important that the Court considers all the relevant factors and not just the child’s views.  This allows a decision to be made that is in the best interests of the child, which may at times, be different to what a child wants.

It is a key feature of the Australian family law system that children be given the opportunity to have a voice and to express a view in proceedings concerning them, if they choose to do so.  The greater the level of understanding the child has of their views, the greater the weight the court is likely to place on those views.  The child’s view however is rarely the sole determinative factor, with other factors in s.60CC assisting the court in making a decision that is truly in the best interests of the child.

Article by: Yvonne Cox