Information & Articles

How young is too young – Children’s Wishes

When making parenting orders, the Court is required to take into account a number of considerations set out in sections 60CC of the Family Law Act to determine what is in the best interests of the child. Included within these considerations is the need to take into account ‘any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views’. The child’s views will remain one of the considerations the Court must consider when the landmark family law reforms commence in May 2024.

However, if young children are involved, very little if any weight will be placed on the child’s views. The older and more mature the child is, the more weight is placed on their views.

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.

There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case. Ultimately it is a process within the Court of weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.

How can a child’s views be heard?

Children cannot give evidence in Court. Various methods instead exist for the Court to obtain the views of children indirectly. These include:

Family Reports and Single Expert Reports

A report completed by a psychologist, psychiatrist, social worker or other child expert who interviews all parties and children and makes recommendations for parenting arrangements based on their observations and material they have been provided with to read for the purposes of preparing their report.

Independent Children’s Lawyer

An Independent Children’s Lawyer (ICL) can be appointed by the Court to represent a child’s best interests during parenting proceedings. The ICL does not act on the instructions of the child, rather they arrive at their own assessment of what may be in the child’s best interests based on all the evidence.

Recent cases determined by the Court illustrate that the Court places significant weight on evidence of Family Report Writers and Single Experts when young children are involved. Their evidence will often be critical in these cases.

Blanchfield Nicholls’ Director Tijana Petkovic explored a series of cases and research papers to consider the Court’s view on children’s wishes in her paper titled ‘How Young is Too Young? Overnight time for Young Children’. Tijana presented this paper at the Television Education Network 64th Annual Armidale CLE Weekend in February 2023.

Please be aware that on 6 May 2024 the legislative framework for parenting matters has changed in light of amendments to the Family Law Act which came into effect on that date. This paper was written prior to those amendments. Whilst the framework has changed, the child’s best interests remain the paramount consideration for the Court in all parenting cases.

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