How Important are my Children’s Wishes in Court Proceedings?
As family lawyers, one of the more common things we hear about children is “they want to live with me”. It is common for separating parents to disagree on how time and living arrangements should be shared for their children, and it is often requiring the Court’s intervention.
When this occurs, the views of each child must be considered by the Court. This means the Court will listen to the child’s views but is not bound to follow them. This is because the Court will also take into account the child’s age and maturity, and assess whether they have been influenced by one (or both) parents.
How the Court Obtains a Child’s Views Under the Family Law Act
As with all parenting matters, and in accordance with s.60B of the Family Law Act, the Court must make orders that:
(a) Ensure that the best interests of children are met, including by ensuring their safety; and
(b) Give effect to the Convention on the Rights of the Child
When determining the best interests of the child the Court will assess a variety of factors (which are set out at s. 60CC of the Family Law Act). One of those factors to consider is “any views expressed by the child”. However, it is important to note that:
(a) When the Court is assessing the views expressed by a child, it will also make a separate assessment as to how much weight can be given to that view; and
(b) The obligation for the Court is to consider the child’s views, not simply to follow them.
In circumstances where the Court is required to make a decision about the arrangements for a child, s.60CD of the Family Law Act, sets out how the Court is to obtain the views of the child, none of which involve the Judge hearing the matter actually meeting the child. As a summary, the Court will obtain the views of the child by one (or all) of the following: -
(a) The appointment of an Independent Children’s Lawyer (“ICL”); or
(b) Obtaining a report given to the Court by an Expert appointed to comment on the best interests of the child; or
(c) Any other means the Court considers appropriate.
Any of the above options will almost always involve an independent third-party meeting with the child and hearing their views, before thereafter informing the Court. However, part of this process will also usually involve the ICL or Expert giving their own opinion on what should occur and how much weight the Court should give the views of the child.
Read more about when an ICL would be appointed, here.
Factors When Considering Children’s Views
When considering the views of the child, there is no set formula, and each matter will be assessed on a case-by-case basis. There are however common factors which will usually be considered.
Age and Maturity
One of the most common considerations of the Court when assessing a child’s view is the age and maturity of that child.
There is no set age in Australia where a child can legally decide their care or living arrangements.
Whilst generally it could be said that more weight will be given to a child’s view the older they are, this needs to be approached with caution. The assessment will more often be based on the maturity of the child, rather than their age, as well as their ability to express a properly considered view as well as taking into account any mental health difficulties the child may be experiencing. For example, there are some 12-year-olds who are more mature than some 14-year-olds.
Weight vs Wishes
Children mature at different rates, so the weight given to their views will vary from case to case. The Court relies on the opinions of appointed experts or an Independent Children’s Lawyer (ICL) to assess how much weight should be placed on a child’s expressed wishes. These experts can also opine as to how much weight the Court should place on the children’s views, having assessed their maturity.
This is an important part of the Court’s decision-making because judges do not meet with children directly. As a result, the judge cannot make their own assessment and instead depends on professional input to ensure the child’s voice is considered appropriately.
Have the Children’s Views Been Influenced
Regardless of the age of a child, it is always necessary to assess whether the expressed views of a child have been influenced by one of the parents and/or an external source. For example, it is common for one parent to allege that the child is only expressing a particular view due to parental alienation and the other parent reinforcing views that are not accurate.
In a recent example, Andreson J in the matter of Kerimowa & Chong, was presented with a matter whereby one of the children (a ten-year-old boy) was expressing a view that he did not want to see or communicate with his father, and that he would like to harm his father.
Despite the clear and concerning view expressed by the child, his Honour found that:
I place no weight upon the views of either child. As discussed above, the risk presented by the mother arises from her inability to shield the children from her negative views about the father and her influence upon the children which causes the children to form a negative view about the father in relation to matters that have no foundation in reality. The views of the children as expressed to the single expert must be seen in the context of “the children’s need and want to reinforce and appease their mother."
Following his Honour’s findings, orders were made for the children to live with their father and for there to be a period of time of no contact between the children and their mother.
The matter of Kerimowa & Chong demonstrates that the views of the child, whilst considered, are not determinative on a matter. Rather, those views will generally be the subject of analysis by the Court and the various stakeholders involved. Put simply, whilst a child’s views will be heard and can be important, the Court must still do what it believes is in the child’s best interests, even if the child disagrees what orders the Court may make.
For detailed guidance on parenting arrangements and custody, see our dedicated page here.
Frequently Asked Questions (FAQS)
Why doesn’t the Judge meet my child?
In most family law matters, judges do not meet or speak directly with children. This is because the court aims to protect children from the stress and pressure of legal proceedings. Judges rely on independent evidence—such as reports from family consultants, psychologists, or other professionals—rather than placing children in a position where they might feel they have to choose between parents or express views in a formal setting.
The Family Law Act prioritises the best interests of the child, and part of that is ensuring they are shielded from conflict. If the court needs to understand a child’s wishes or circumstances, this is usually done through a Family Report or an Independent Children’s Lawyer (ICL), who will speak with the child in a safe and supportive environment. This approach ensures that the child’s voice is heard in a way that is safe and free from pressure.
Can a child choose where to live after separation?
Under Australian family law, a child does not have the legal authority to decide where they will live after their parents separate. The court’s primary consideration is the best interests of the child, which involves a range of factors such as the child’s safety, emotional wellbeing, and the ability of each parent to meet their needs.
While a child’s views are taken into account, the weight given to those views depends on their age, maturity, and understanding of the situation. The views are communicated through Court appointed experts or the appointment of an Independent Children’s Lawyer.
Learn more about parenting arrangements and custody here.
How does the Court check if a child has been influenced?
The Court uses independent professionals (family consultants or child experts and Independent Children’s Lawyer) to speak with the child in a neutral setting. They usually look for signs of coaching, such as rehearsed language or views that don’t match the child’s age or understanding. Judges also consider the overall context and evidence to ensure the child’s voice is genuine and decisions are made in their best interests.
If you have concerns about how your child’s voice will be heard, we can guide you through the process and explain the options available or or need assistance navigating views expressed by a child, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 9929 8840
Prepared by Anthony Shaw and Rebekah Dorter at Dorter Family Lawyers & Mediators. For advice tailored to your situation, contact our team today.
