When do children have a choice in Family Law matters?


Young child with teddy bear standing in front of parents

Parents often raise with me the question of “When do my children’s opinions on who they should live with come into consideration?”

The short answer is the Court does not have to take into consideration their opinion, but may do so if they believe it appropriate and they may add whatever weight they believe it should be given.

The Courts main consideration in children matters is having to assess (A) the benefit of the child having a meaningful relationship with both of the child’s parents; and (B) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

A general rule of thumb is that if the child is under say 12 years, their opinions, are likely to carry less weight with a Court than say a 14 year old. However, as a recent court case illuminates it is a discretion of the Court. This recent case concerned two boys aged 17 and 15 who had travelled with their Father to New York for a holiday.

During the trip the Father advised the Mother that he would not be returning to Australia with the boys and that the boys had said that they wished to remain living in New York with the Father. Prior to this, the boys were living with the Father in Australia. Their 12 year old sister resided with the Mother.

The Mother was successful in obtaining an interim order (temporary order) that the boys return to Australia for the matter to be dealt with by the Family Law Court. The Father appealed this matter all the way to the High Court claiming that the Court should take into consideration the boys opinions.

The High Court ruled that the boys opinions was only 1 of many factors for the Court to consider and that although a child’s views and wishes can be relevant, they are not the determinative factor and there is no requirement for the court to be bound by those views.

As usual, the law is not straight forward or clear cut but your child’s opinions are important, particularly if they are over say 12 years of age, however the Court will determine what weight it gives their opinion.

This column is not legal advice as it does not take into consideration your individual facts and you ought seek independent legal advice.