Views of the Children in Family Law

Posted 12th January 2016 by Dirk Klicker

In this Blog I discuss the child’s views or wishes about their living arrangements in the Family Court of Western Australia (“the Court”), in particular, how the Court takes into account the child’s views or wishes and how much influence the child’s views and wishes has on the Court’s decision.

How does the Court take into account my child’s view or wishes?

The Court is required to consider the views of the child: see Sections 60CC and Section 60CD of the Family Law Act 1975 (Cth).

In the Court a child cannot talk directly to the Court.  There have been cases in the past where judges have spoken with the children.  However, this practice has fallen out of favour.  Invariably the judges will make decisions about children who they have never met or had any dealings with.  Although this may seem like a flaw in the process, the rationale is that children should be protected and shielded from the conflict between the parents in the Court.  There are adequate measures in place for the children’s views to be taken into account by the Court.

The usual practice is for the child’s views or wishes to be provided to the Court by way of a report from the family consultant or an independent expert (usually referred to as a single expert witness (“SEW”) report).  The SEW can be a social worker or a child psychologist.  The SEW will generally spend some time observing the children in their normal environment and will if appropriate speak to the children to obtain their views.  The SEW will then prepare a detailed report that will be provided to the Court and to the parties.

Sometimes the Court will appoint an independent children’s lawyer (“ICL”) to represent the children.  An ICL may in their discretion speak to the children.  However, this practice is not appropriate with younger children.  An ICL does not prepare a report for the Court and is only an advocate for the children.  If there is an independent child’s lawyer then the Court will listen to what the lawyer has to say about the child’s views or wishes.

How much influence will my child’s views or wishes have on the Court’s decision?

The Court first determines the weight that should be attached the child’s view.  Factors that the Court can consider when determining how much weight to place on the child’s view or wishes are as follows:

  1. The strength and duration of the child’s views or wishes and whether that strength has been indicated by past or current behaviour, such as running away from the other parent, emotional displays, tears and temper tantrums.
  2.  The basis of the child for forming their views or wishes. The Court will look at whether there is a sound or rational basis.
  3. The degree of emotional and intellectual maturity of the child, including the degree of appreciation by the child of the factors involved in the issues before the Court and their longer term implications.
  4. The welfare of the child.
  5. The extent to which a child has been influenced by a parent. The Court will look at whether the child’s views or wishes can be shown to be wholly or partly the result of parental or other family manipulation.
  6. Other aspects of the case which are likely to support or undermine the outcome which is in accordance with the child’s views or wishes.
  7. The age of the child. A child’s views or wishes will have greater weight given to them the older the child is and the shorter period of time that there is during which the court’s jurisdiction over the child will operate.

If the Court finds that substantial weight should be given to the child’s view or wishes about their living arrangements then it will balance this against the other considerations that need to be taken into account in determining what is in the child’s best interests under the legislation.  This means that a child’s view or wish does not dictate what the Court decides but may influence depending on the circumstances.

Cases where the Court has decided against the Child’s views or wishes

In Pannell v Pannell [1996] FamCA 1, the father appealed a case to the Full Court where the trial judge had made the decision that the children (aged 7 and 5 at the time) live with the mother and spend time with the father.  The 5 year old had previously expressed that she wanted to live with her father.

The trial judge attached little weight to the child’s wishes because of the parental influence that the father had over the child resulting from the father’s excessive discipline.

The Full Court held that it was open on the evidence before the Court for the trial judge to make that decision and the father was unsuccessful on appeal.

In R v R: Children’s Wishes [2000] FamCA 43, the father appealed to the Full Court after the trial judge made the decision that the children (aged 10 and 12 and half at the time) live with their mother despite expressing wishes to live with their father.

The trial judge accepted that the children’s views or wishes should have substantial weight placed on them but she balanced this against other relevant considerations in the case to determine what was in the best interests of the children, such as the father’s lack of insight into his conduct on the effect of the children’s future development.  The father had demonstrated a lack of commitment to facilitating contact between the children and their mother in the future.

The Full Court found that the trial judge was open to do this and the appeal was dismissed.

In this case, the Full Court also held that in making a decision against the children’s wishes or views the trial judge was not required to determine that the wishes of the children were unsound, founded on improper considerations or influenced by others rather it is what is in the best interests of the children.

In summary, a child’s views or wishes should not be ignored by the Court.  But the first question is how much weight should be placed on the child’s views or wishes.  If the Court finds that substantial weight should be placed on the child’s views or wishes, then it will balance this against other considerations that are taken into account when determining what is in the best interests of the child.  There is no law that says when a child reaches a certain age the Court will go along with the views or wishes of that child but the older the child is the more likely the Court is to be influenced by their views or wishes.

Parents will often want the children to be assessed because they feel that the children’s views will be supportive of their case.  The reality is that sometimes they are but sometimes they are not.  In some cases children will change their mind and their position, because they love both parents and do not wish to alienate or offend either parent.  The mistake parents will often make is to speak to the children about the case and the Court may take a very negative view about a parent that takes that course of action.  It is important that parties take advice from an experienced family lawyers about the view of the children.