Some of the most common questions we are asked by our clients are ‘when can a child decide where to live?’ and ‘when are a child’s views given weight by a Court?’ There is no one right answer to this question.
When there is a dispute between two parents about a child’s living arrangements, a child’s views are but one of 16 factors taken into account by a court in determining what orders are in a child’s best interests.
Importantly, the child’s views are not one of the primary considerations taken into account by the Court.
The primary considerations of the Court are:
- the Child’s right to have a meaningful relationship with both parents;
- the Child’s right to be protected from harm.
The weight that the court gives to a child’s views will depend on a number of circumstances including the age and maturity of the child, their level of understanding and whether their wish is well informed or whether their wish has been influenced by another person.
Case Study where child’s views given weight: Farina & Naima
In Farina & Naima [2022] FedCFamC1F 92, Justice Carew was required to hear a difficult case whereby the child (13) did not want to spend time with our communicate with her Father.
In this case:
- the child E had been the subject of her parent’s conflict for most of her life including numerous prior court proceedings, contraventions hearings and 4 family reports;
- E always lived primarily with her Mother and spent little time with her father, despite orders for time to occur;
- The parents were in dispute about why contact had not occurred with the Father, each blaming the other;
- The Father sought the reinstatement of the previous court orders, which were suspended the year before;
- The Mother sought a suspension of those orders and for no time to occur;
- By the time of the trial, E had not seen her Father since May 2019 at a tortuous changeover of the child;
- It was common ground that irrespective of who was at fault, E repeatedly said she did not want to go on the visit with the Father and E was unable to be persuaded by either party to go;
- It was common ground that E had been exposed to conflict between the parents including most pertinently incidents which occurred in 2014. The Father and Mother disputed the accounts given by E of these events but to the extent they occurred, he said they could not possibly explain E’s wishes not to see him now and contended that after these events he spent happy times with the child;
- E told the Family Report writer (Ms L) in very clear terms she did not want to see/spend time with her father;
- Father contended that E was only expressing such view because she was brainwashed by the Mother;
Justice Carew made the following important observations in her judgement [24 – 29 of judgement]:
-
As the Family report writer explained, “if an event that [E] perceived as traumatic occurred, even many years ago, that may well inform her views today. What is important is the child’s perception of what occurred and how that made her feel. Her description involved being physically caught in the middle of her parents’ dispute. I have no doubt that could have a lasting impact.”
-
“…since then there have been many stand offs between the mother, the father and/or Ms S and despite orders being in place and despite all adults at least seeming to encourage or direct the child to spend time with the father, she has refused to do so. The videos I have seen leave me in no doubt that attending the changeovers is a very stressful experience for E. She has become distressed and refused to let go of her mother’s arm.”
-
“While I understand the father’s frustration and disappointment, the reality is that no Court order can bring about the change he wants, given E’s age and clearly stated wishes. Whether or not he or the mother are more to blame for the current situation matters not in the scheme of things. It is not the role of this Court to resolve every factual dispute between the parents but to make an order that is in E’s best interests in the particular circumstances of this case.”
-
“Rightly or wrongly, E’s perceptions of her father are that he does not listen to her and “thinks he’s right and everyone [else] is wrong”. It is clear that E would like nothing more than to have a normal relationship with her father but sadly that has not been able to occur.”
-
“When it was suggested by Ms LL to E that she might see her father, E “became teary and agitated and begged the report writer to not make her see her father and threatened to run away if she had to see him”. Given her level of distress, Ms LL did not press for a meeting between them to occur. While Ms LL assessed it as likely that the mother’s views have influenced E she nevertheless opines that E’s own experiences are largely her own. Ms LL said at [61] of her report:
61. It is likely that the mother’s fears of [Mr Naima’s] passionate views of how his daughter ought to be available to him and how she ought to relate to him and his faith, have been sensed by [E], and may have played a role in [E] developing her view and experience of her father, however based on [E]’s comments in her recent assessment interview, the report writer has formed the view that [E]’s negative view of her father has largely been formed by her own experiences of her father. Her comments suggested that she does not feel that [Mr Naima] respects her mother, nor does he respect her and her wishes.”
-
“The report writer assessed E “as mature enough for her views to be given considerable weight and opines that forcing E to see her father would not be in E’s best interests. Unfortunately, for the father, and perhaps for E in the long term, I agree with Ms LL’s opinion that E’s stated wishes are her own and should be respected.”
In summary, Her Honour agreed with the report writer’s view that whilst it was likely the Mother’s views influenced E, E’s view’s were informed largely on her own, based on her own experiences of her Father, that she was mature enough or her views to be given weight and that forcing E to see her Father would not be in her best interests.
Her Honour stated that E was clearly exposed to enough conflict and should not be required to endure that any longer.
Ultimately, the child’s views were given weight and Orders were made by Her Honour that the Mother have sole parental responsibility for E, that E live with the Mother and spend no time with the Father save for in accordance with the child’s wishes. The Father was permitted to send letters, cards and gifts to the child. The Mother was restrained from changing the name of the child without the Father’s consent.
What have we learnt about when are a child’s views given weight?
It is clear that the Court will place weight on a child’s wish not to spend time with or communicate with a parent where the following combination of factors exist:
- The child’s views and the reason the child is expressing those views is clear;
- The child’s views are largely their own;
- The child’s views have not been formed based on significant influence by the other parent;
- The child is mature enough to have weight placed on those views;
- Where there is likely to be a negative impact on the child if an order for that child to spend time with the other parent against their wishes.
In Farina & Naima, Her Honour placed weight on the wishes of E not to spend time with or communicate with the Father after considering the views of E, why she was expressing those views, whether she was mature enough to have weight placed on those views and the likely impact of an order against her wishes for contact to take place.
Importantly, it mattered not to the Court in the scheme of things, who was to blame for the current situation, given E’s age and clearly expressed wishes and also having regard to the fact that the child’s wishes were largely formed from her own experiences of her father, even though her views may have to some extent been influenced by the Mother. Ultimately, it was made clear in this case that it is not the Court’s role to determine every factual dispute, but rather, it is the Court’s role make an order that is in the best interests of the child in the circumstances of the case.
When two parties are in family court and it is agreed the child has (for reasons usually in dispute) expressed a view that they do not wish to spend time with one parent, the reasons for those views and whether that child’s views should be given weight is closely examined by the Court.
Importantly, it is not a reward and punishment system. Sometimes parties will be delivered an outcome that is sometimes not fair and an outcome that they may not have deserved, however, the court is hamstrung in that the focus in a parenting proceeding is not on what is fair and what a parent deserves but rather, what is in the best interests of the child in the circumstances of that case.
Want more information about when are a child’s views given weight?
For more information in relation to when are a child’s view’s given weight and the family report process, check out the following links:
- Child Custody
- At what age can a child decide where they live?
- What age can a child decide where they live video.
- What is the purpose of the Family Report video.
Contact Us
If you want more information in relation to these issues and when are a child’s views given weight, contact us to book a reduced rate consultation with one of our experienced Brisbane Family Lawyers, to discuss the specific circumstances of your case.
Often, taking a proactive approach in these types of cases, may mean the difference between you being able to achieve orders for time with your child, particularly in circumstances where there is an allegation that the other parent is influencing your child’s views.
