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Published: 07 May 2018
Author: Cherieanne Carmichael
In custody disputes clients often ask me how the children’s views are taken into account during the court process. If parents cannot agree about the ongoing care arrangements for the children, then the matter is placed in the hands of a Family Court Judge to decide about these issues.
Decisions made by the Court about whom a child should live with are based on what is in the best interest of the child. One factor to consider in determining what is in the best interests of a child are the child’s wishes. Of course, the child needs to be of communicable age for their views and feelings to be taken into account.
There is no specific age that The Family Law Act dictates is an appropriate age for the child’s views to be taken into account. The amount of consideration that the court places on the child’s views will depend on the child’s age, the child’s ability to communicate their wishes and the child’s ability to understand what is going on. This is a big ask for any child as often the adults struggle to fully understand what is going on in family law dispute.
Children are not permitted to give evidence in the Family Court. Giving evidence in Court is often too much for an adult to bear, so to ask a child to withstand the stress and strain of giving evidence would be totally inappropriate.
There are many cases in which the Court considers children’s wishes, however it really depends on, the different circumstances, the maturity of the child’s views, the child’s age and their ability to clearly express their views. The Court will take into account the children’s wishes, but it is not the only issue that the court considers when working out whom a child should live with. After considering all the evidence in totality the court may take the view that what the child thinks is best for them is in fact not in their best interests.
Importantly a child cannot be forced to express their wishes. If a child does not want to say what their view is they do not have to. The Court is focused on not placing undue stress on children. It is vitally important that the child does not feel that the weight of the decision as to where they live is placed on their shoulders. A decision as vital as this should never be placed in the hands of the child.
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