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But the children don't want that!

Most disagreements about parenting arrangements stem from either one parent believing that they are best equipped to care for the children, or a belief that the children want to live with that parent.

How important are the views of children, and how does a court work out what children really think?

The Family Law Act says that the best interests of children are paramount. Easy to say, but how do courts work that out?

The two primary considerations are the benefit to a child of having a meaningful relationship with both parents, and the need to protect a child from harm from exposure to abuse, neglect or family violence.

The Act then lists other considerations to be taken into account. The major ones of these are:-

• Any views of the child
• The child's relationship with the parents, and other significant persons such as grandparents and new partners,
• The willingness and ability of the parents to work together,
• The likely effect of any change, including the effects of separation on the child's relationships,
• Any difficulties and expense likely to arise from a change, particularly as to the maintaining of relationships if distance intervenes.
• The capacity of each parent to provide for the child’s physical, emotional and intellectual needs, and the parent’s attitude to parental responsibilities.

The views of a child are obviously important, but how important?

The weight given to a child's views will depend on that child's age and maturity; the views of a teenager will be very significant, and those of a pre-schooler of little importance. Children have a habit of telling a parent what they think that parent wants to hear, so a statement by a parent that Johnny or Mary say they want to live with them is far from being strong evidence of a real wish, and even less of a mature and considered wish.

The law provides for the appointment of an independent lawyer for children, who will talk to the child and express their views to the court. However, their lawyer is not obliged to support those views.

Lawyers are not trained child psychologists or counselors, and a court can order reports from experts. These reports can be from the court's counseling staff, or by outside practitioners, and in the latter case can be from specialists such as child psychiatrists. The latter tend to be involved when there are allegations of abuse.

Whatever the type of independent reporting used, there will normally be no attempt to have a child directly express a preference for one parent over the other - views can be ascertained by trained specialists by more sophisticated and subtle techniques.

What a child really wants is significant to a court, and the older the child the more significant those views will be.

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