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:

  1. The issues that need to be decided; and
  2. 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”.

CaseAge & court’s comments on the maturity of the childrenResult of child’s wishes
Newton & Whiteman (Limited Issues) (No.3) [2016] FCCA 222212, very matureWishes significant
Olssen & Wise (No.2) [2016] 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 [2021] FCCA 81416, 14 Children influenced by motherInterim matters- short term arrangements made where and wishes were less determinative
Leggett & Cleland [2020] FCCA 24709, 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) [2020] FCCA 240713, 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 [2018] FamCAFC 14312Child’s wishes weren’t taken into account – held this was an error allowing appeal.
Reddy & Arena [2019] FCCA 1494Nearly 14Child’s wishes accepted with background of family violence
Seabrook & Seabrook [2018] FCCA 2311  15 and 13Children’s views to be listened to and incorporated partly, but wishes found to be influenced by their mother
Ebden & Ebden [2018] FCCA 1383 (1 June 201812 and 11, “young” “lacked maturity and independent, critical thinking skills to evaluate attachment relationships objectively” “childish thinking”Wishes noted but not determinative

Other cases

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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Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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