The Best Interests of the Child – The Child’s Views

In determining what arrangements are in the child’s best interests, the Court is to take into account “primary considerations” and “additional considerations” under the Family Law Act 1975. One of the additional considerations as set out in section 60CC of the Family Law Act is the child’s views.

In the past, the Court was required to not make any Parenting Order that would be contrary to the child’s wishes, where that child was over the age of 14 years, except in special circumstances. Over time the family law changed and the Court is now required 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.

The word “wishes” was replaced by the word “views” in 2006 to recognise that a child may not necessarily want to express a “wish” about which of his or her parents the child will live with or spend time with. It was intended that the word “views” will also capture a child’s perceptions and feelings, therefore allowing consultation with the child without the child requiring to make a decision or express a wish. It was intended that references to a child’s views will not exclude the child from expressing his or her wishes.

The new terminology is also consistent with the terminology used in the United Nations Convention on the Rights of the Child.

The Court is likely to give less weight to the views of a younger child and more weight to the views of an older child. For example, in the case of Allen v Allen (1984) it was held that a seven year old child was not in a position to make a mature, responsible and considered assessment of the relevant factors or of the significance of the decision. However, the views of children, even as young as four to eight years, are not be ignored or disregarded. For example, in the case of In the Marriage of Joannou (1985) the trial Judge’s appeal was successfully appealed for finding that the children’s wishes were not relevant, and were therefore not required to be taken any notice of. Therefore, the Court will have regard to children’s views, but may then consider that in the particular circumstances of a case, they carry little or no weight. This is especially the case where it appears that the child’s views are the result of pressure on the child, or emotional attachment by the child, therefore shedding doubt upon the question of how far they reflect the child’s own views.

It is important to note that the child’s views is only one factor to be taken into account in determining the child’s best interests, and it is common for Courts to make Parenting Orders which are contrary to the views of children. However the Court also considers the likely consequences of making a Parenting Order that is contrary to the child’s views. For example, in the case of In the Marriage of Radford and Alpe (1985) the Judge determined that in that particular case, the children were likely to be so resentful if they were taken away from one of their parents that their relationship with the other parent would be damaged irreparably.

Whether a child’s views will be taken into account in a child custody matter is therefore determined on a case by case basis and what may be relevant in one particular matter, may not be relevant in another.

If you require assistance with a child custody dispute or obtaining parenting orders, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.