A family breakdown and subsequent separation is a tumultuous time for families, and even more so when there are children involved. Family lawyers are often asked who decides where the child or children live after separation, and what weight is given to the child or children’s wishes about which parent they would like to live with. Although this is a decision which can be made amicably between the parties taking into account the wishes of the child, ultimately it is a decision made by the Court if the parties cannot agree between themselves.
The best interests of the child remain the paramount consideration of the Court when determining children’s issues, and the Family Law Act 1975 (the Act) sets out a range of factors which the Court must consider when determining the best interests of a child, which are divided up into two tiers, the first being ‘primary considerations’ and the second being ‘additional considerations’.
Interestingly, the child’s wishes are not included under the primary considerations the Court must consider, instead falling within the scope of the additional considerations set out in the Act, alongside approximately 13 other factors which may have bearing on the Courts ultimate decision.
While other countries do have minimum ages at which children can express their wishes (for example the United Kingdom parliament recently announced that children who are aged 10 years and over are capable of expressing their wishes as to where they would prefer to live after separation/who they want to live with), Australia does not have any legislated minimum age requirements for a child’s views to be taken into account.
Instead, the Court must consider the ‘bigger picture’ and take into account a range of factors when determining the weight to be given to the child’s views, including (but not limited to) how well informed the child is of the situation, including their level of maturity and understanding, and if they have been influenced by either parent to adopt a particular position.
It is not uncommon therefore for the weight given to a child’s wishes to vary considerably depending on the individual circumstances of a particular case. A seven year old in one case may be assessed as more mature and capable of making an informed decision than an eleven year old in another case.
The child’s wishes are usually ascertained by a Court appointed or privately-funded family report writer who conducts interviews with all relevant family members (including parents, step-parents, grandparents and siblings) and presents their recommendations to the Court as to the best interests of the child. The recommendation provided by the family report writer is often (though not always) afforded considerable weight by the Judge when determining final orders.
Ultimately, it is preferable if parents can work together to decide parenting matters between themselves after separation. However, this is often unachievable in the immediate aftermath of separation and this is where having an experienced and professional family lawyer can assist to guide you through the process and help to resolve the matter without legal proceedings if possible.
Our friendly and experienced Gold Coast Family Lawyers are here to assist you, so if you have recently separated from your partner, or need assistance in relation to children’s matters, please feel free to telephone us on 07 5563 8970 to arrange a consultation today.