Old enough to decide
By Bethany Moller – June 2021
18 is the magic age where a person can decide their own arrangements. Where a child is younger than 18, their age is only one aspect for consideration. The way the Court treats children’s views depends on:
- The issues that need to be decided; and
- The weight the court attaches to the children’s views.
Under Australian law, children’s views (if expressed) have to be taken into account in determining what arrangements are being made for children.
Section 60CC of the Family Law Act 1975 (Cth) provides that the Court must take into account “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”
The weight given to a child’s views depends on the strength and duration of the wishes, the basis of the wishes, the maturity of the child, and whether and how the child appreciates the factors involved in the matter.
H & W (1995) FLC 92-598
In the case H & W, the parties’ children were eight and seven. The wife’s new partner had violently disciplined the children during the children’s temper tantrums. The children dreaded the wife’s partner and refused to spend time with her, even without her new partner present. On appeal, it was held that the father should have sole custody reflecting the children’s wishes. The court said:
“The wishes of children are important and proper and realistic weight should be attached to any wishes expressed by children…. As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant….
it appears to us that recent social forces have indicated that more realistic weight should be attached to the wishes of the children than may have been the practical realities in years past. But there is nothing new or surprising about that circumstance; the Family Law Act is fundamentally about the application of its general provisions in the light of changing social values”.
|Case||Age & court’s comments on the maturity of the children||Result of child’s wishes|
|Newton & Whiteman (Limited Issues) (No.3)  FCCA 2222||12, very mature||Wishes significant|
|Olssen & Wise (No.2)  FCCA 884||16, 13, 12: ”very impressive young people”||Wishes significant but not wholly determinative, orders made were less than what the children wanted|
|Leckner & Tomey  FCCA 814||16, 14 Children influenced by mother||Interim matters- short term arrangements made where and wishes were less determinative|
|Leggett & Cleland  FCCA 2470||9, insufficient age and cognitive reasoning: child saw no downsides of proposed arrangements but couldn’t see any upsides either.||Wishes not given much if any weight|
|Cerwin & Cerwin (No.3)  FCCA 2407||13, lack of age and emotional and intellectual maturity. Not able to assess her own best interests or resist her mother’s influence.||Child’s preference noted but wishes not determinative|
|Sagilde & Magee  FamCAFC 143||12||Child’s wishes weren’t taken into account – held this was an error allowing appeal.|
|Reddy & Arena  FCCA 1494||Nearly 14||Child’s wishes accepted with background of family violence|
|Seabrook & Seabrook  FCCA 2311||15 and 13||Children’s views to be listened to and incorporated partly, but wishes found to be influenced by their mother|
|Ebden & Ebden  FCCA 1383 (1 June 2018||12 and 11, “young” “lacked maturity and independent, critical thinking skills to evaluate attachment relationships objectively” “childish thinking”||Wishes noted but not determinative|
A number of cases confirm that the older children are, and particularly around the ages of 15 and above, the more important it is that orders reflect their wishes as they as they simply won’t comply otherwise.
Some other recent cases are set out below.
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