At what age can a child tell the Court with whom he or she should live?

Tuesday , 24, November 2015 2 Comments


At what age can a child tell the Court with whom he or she should live¹?

family-court-of-australia-crest

Many people are often armed with the opinions and advice of friends and relatives, a common misconception is a child 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.

Other relevant factors to consider include²:

  • 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.

 

 

 

 

Footnotes:

[1] Barry & Nilsson Lawyers http://www.bnlaw.com.au/page/Events__Publications/Family_Law_publications/At_what_age_can_a_child_tell_the_Court_with_whom_he_or_she_should_live/ Accessed 24/11/2015 at [12.49pm]

[2] Batkin & Batkin [2013] FamCA 44



2 thoughts on “ : At what age can a child tell the Court with whom he or she should live?”
  • Jody Simpson says:

    This is a sore point for me, however a perfect example of fatal flaw in the Australian justice system.

    The options available to assess the best interests of the child are inadequate to the detriment of the child. Rite of passage is given far to much credit for something they know NOTHING about.

    Time constraints is but one very simple , However crucial factor in why the court are not positioned to know the best interests of the child, nor are they truly consider it a priority. If so, they would make the time to understand the child and their best interests. Unfortunately, like most parents who are willing to use the child as a pawn to achieve advantage, the family court are guilty of the same thing. How can a family court consultant know after a half hour consultation with each party where animosity and conflict exists, then write a conference memorandum of accuracy?

    The fact is that without evidence they cannot, therefore it infuriates me that these consultants are referred to as “expert witnesses” and considered more credible than adults in dispute.

    The Family Court determine a person’s credibility to be directly related to a combination of socioeconomic status and ability to articulate the most convincing affidavit.

    In summary: That criteria undermines the whole purpose for having a Justice System in the first place.

    You could be Forrest Gump or Sam I am, and lose your precious child to the dysfunctional State System of child welfare because of the judgemental ignorance of a power tripping authority who is assumed to know better than both sides, the best interests of the child.

    What fuels my anger even more is the lack of accountability associated with decisions made which can easily be proven NOT to be in the best interests of your child, however time constraints do not permit.

    The entire legal system is a joke that is based on a foundation of conflicts of interest, and no real recourse for accountability.

    It’s disgraceful.

    • Jane Parish says:

      Totally agree with you Jody, I am so over this system.
      Some of these so called Family Reporters have a lot to answer for. Like you I agree, How can these people make a judgement on your family life in just a few hours. I also believe that these Family Report Interviews should be videoed and recorded. Yesterday, I had to watch my 12 year old go back with her father after she alleged he had punched her in the leg because of some simple little thing 5 days before she came to me for access. The night after he allegedly hit her they had another argument over the same thing and he told her to pack her bags and get out. .She showed her bruise to the teacher and guidance officer the day after it happened and they were both going to report it to Docs. and also has been reported by a doctor. It has been shown to police etc but a formal complaint couldn’t be made because previously the x had taken the children off me and had them make false allegations of physical abuse against me. I was charged but they were dropped because there was insufficient proof of evidence and because of the credibility of the police witnesses. I had plenty of evidence to prove my innocence, even recordings which I am so glad I recorded. The x was also a friend of the cpu officer who charged me. She was not taken off the case as a conflict of interest. and the child has since said that her father made her make the allegations ag or he would hurt me or her. Now they are saying she is playing one parent against the other yet my elder daughters and I lived with this man for 10 years and he certainly hasn’t changed his behavior patterns. I took the eldest child to the dr as she had an enormous bruise on her leg. He advised me to go to the police. I took her there and asked for advise as I knew she was determined not to go back and she was scared that he may hurt her again. However I did not make a formal complaint as I am afraid the Family Court will think its tit for tat.
      The 12 year old was refusing to go back. I was advised by my solicitor who had been told of all that had happened. that she had to go back and to take her back to her father. I took her to where we meet and she refused to get out of the car and told him point blank that she was not going back with him. He demanded she get out of the car but she still refused. I ended up taking her to her school and the staff suggested we leave her there as she did have some assessments due and it may be a distraction for her. However on ringing the school during the day to see how she was going, they said she had had a meltdown and was watching the clock and as the hour was getting closer to end of school she still was stating she wasn’t going back, My solicitor advised me that she is 12 years old and can make a stand but she must tell him herself that she was not going with him so let him turn up to pick her up and see what happens and if she refuses to go then I can pick her up. I waited for the school to ring me and I go a phone call to say that they wanted to see me. I went to the school to find out that the police were there and the child had gone with her father. The school had called the police to drive past and be around incase there was a scene. However they were there and had spoken with the father and the child. The policeman was very rude and told me blank that she had to go back and waved the family court orders at me. Apparently the x had told them that my solicitor had emailed his solicitor and told him that he had to pick her up. (MY solicitor denies doing so) . The police officer was not interested in one work I had to say and kept stating that she had to go because that was what the orders said and that was that. Even after explaining how verbally abusive the x can be and how he messes with the childrens heads, and telling him what verbal abuse this child will probably have to endure when the father gets her out of everybodies sight, he still would not listen and kept on about the orders. His words were you’ve had her to the dr, the police know about it and the staff here at the school will keep an eye on her. There was nothing I could do. So here I am…I haven’t been able to speak with the children now for 2 nights as the x won’t let me, so don’t know how she is going. She was back at school today and the school did say she seemed ok. I question. What is more important… the paper that words are written by someone who doesn’t know this man at all or the safety of a child. The Family reporter we had was very much in favour of the father. He wasn’t interested in what I had to say and wouldn’t even look at new evidence we had to prove our case and what these children were enduring. He didn’t even write in his report that he spoke to the childrens 29year elder sibling. He would not even speak with the childrens paternal grandmother who also suffered verbal abuse and threats from this man her own son. I spoke with him for an hour, the x spoke with him for just over and hour and the girls would have had about 20 mins each. And we get told that these judges rely on the family report for their verdicts.. What a joke…One spends thousands of dollars to get an affidavit done but whats the use.. .What time does a judge have to read them when he has to push through 20 cases or more a day. and he relies on what the reporter says anyway and also the here say in the courtroom. Your righ…t Its disgraceful and they certainly don’t act in “best interests of the child” and Why don’t they look at the cases individually instead of putting them all in the one basket. and Docs that’s another joke. This matter has been reported to Docs by at least 4 people and Surprise have heard nothing.. I was told last night that unless it was an emergency..that is the child has to have been noted with several bruises and it has to be consistant. So I question Does that mean a child has to endure more of this father verbal and physical abuse before anything can be done.
      And they say these people from overseas are trouble….What’s happening in our own backyard… Children are being subjected to a life they don’t deserve because the this so called Family Justice System wont listen and its seems no matter how honest you are they still believe the one who can put on the charm and lie through their teeth.

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