Over the years I have been asked this question many times. Clients are often armed with the opinions and advice of friends, associates and relatives, who have suggested a child anywhere between the ages of 12-16 should have the choice and be able to make this decision.  

The correct answer is that, at no age can a child tell a Family Court Judge or a Federal Circuit Court Judge what is in their best interests.

Parenting Orders are determined by the Court with the best interests of the child being the paramount consideration.  In determining this, the Family Law Act 1975 sets out two primary considerations when dealing with parenting matters:

  1. The benefit of a child having a meaningful relationship with both parents; and
  2. The need to protect a child from physical and psychological harm. 

The principles underlying these considerations are focused on a child spending regular time with both of their parents.  In addition to these primary considerations, the Court must consider the child’s views and apply such weight as is appropriate having regard to the child’s age and level of maturity. A Trial Judge is then required to weigh up all of the evidence, with the views of the child being only one of the factors considered in the overall assessment of the child’s best interests.  

Whilst the Family Law Act does not specify an age a child must be before their views are considered by the Court, generally speaking a Court will place more weight on the view of a child who is more mature and insightful, which is generally when they have entered their teenage years.

As set out by Justice Kent, of the Family Court in the decision of Batkin & Batkin [2013] FamCA 44, other relevant factors to consider include:

  • the strength of the views expressed by a child and the length of time they have been held; 
  • the extent to which the views expressed by the child are based on a choice that is well thought through, and based on appropriate as distinct from irrelevant or peripheral matters;
  • the extent to which the views are the result of pressure on a child, whether intended or not; and
  • the extent to which the views are a reflection of their emotional attachments. 

In summary, the extent to which expressed views reflect the child’s own well considered choice as opposed to the influence of their circumstances and emotional attachments. 

How are children’s views presented to the Court?

The Family Law Act 1975 provides that a child must not be called as a witness in proceedings or be present in Court during proceedings under the Act.  The Court may inform itself of the views of a child through the following alternative methods:

  1. Preparation of a Family Report, where the writer of the report, who is generally a psychologist or social worker has had an opportunity to meet with the parties and the child;
  2. An interview with a Family Consultant from the Court’s Counselling Service; and/or
  3. Making an Order for the child to be independently represented by an Independent Children’s Lawyer who is empowered to make all enquiries required to determine the best interests of the child.