Children's views play an important role in Australian family court proceedings, but understanding when, how, and to what extent courts consider these views is crucial for parents navigating custody and parenting arrangements. This guide explains the legal framework and practical considerations around children's voices in family law matters.

Legal Framework

Family Law Act Requirements

Under Section 60CC of the Family Law Act 1975, courts must consider "the 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."

Key Principles

  • Best interests paramount: Children's views are one factor, not the deciding factor
  • Age and maturity matter: Older, more mature children's views carry more weight
  • No fixed age: There's no specific age when children's views become determinative
  • Protection from pressure: Courts ensure children aren't pressured or coached
  • Professional assessment: Views are usually obtained through trained professionals
Important: Courts don't simply follow children's wishes. They consider views alongside all other factors to determine what arrangements truly serve the child's best interests.

When Children's Views Are Considered

Age and Maturity Guidelines

Age Range Typical Consideration Weight Given
Under 7 years Views rarely sought directly Minimal weight
7-10 years Views may be considered through professionals Limited weight
11-14 years Views usually considered Moderate weight
15-17 years Views strongly considered Significant weight

Factors Affecting Weight Given to Views

  • Cognitive development: Child's ability to understand consequences
  • Emotional maturity: Capacity to express genuine preferences
  • Consistency: Whether views remain stable over time
  • Independence: Whether views are the child's own or influenced by others
  • Understanding: Child's grasp of the situation and implications

How Children's Views Are Obtained

Family Consultants

Most commonly, children's views are obtained through family consultants who:

  • Are qualified social workers or psychologists
  • Use age-appropriate techniques to communicate with children
  • Prepare reports for the court
  • May interview children multiple times
  • Observe parent-child interactions

Independent Children's Lawyers (ICL)

In complex cases, courts may appoint an ICL who:

  • Represents the child's best interests (not necessarily their wishes)
  • Investigates the child's circumstances
  • May obtain the child's views directly
  • Makes recommendations to the court
  • Can call evidence and cross-examine witnesses

Direct Communication with Judge

Rarely, older children may speak directly with a judge:

  • Usually only for mature teenagers
  • Conducted in private, informal settings
  • Parents and lawyers typically excluded
  • Judge explains the conversation to parties afterward
  • Used sparingly to avoid traumatizing children

What Courts Look For

Genuine vs. Influenced Views

Signs of Genuine Views

  • Consistent across different settings and times
  • Based on child's own experiences and feelings
  • Expressed in child's own words and concepts
  • Acknowledge both positive and negative aspects of each parent
  • Show understanding of consequences

Signs of Influenced Views

  • Use adult language or concepts
  • Extreme or black-and-white thinking
  • Sudden changes in previously stable views
  • Inability to explain reasons for preferences
  • Views that don't match observed behavior

Reasons Children Give

Courts pay attention to the reasons behind children's preferences:

  • Practical reasons: School, friends, activities, pets
  • Emotional reasons: Feeling safe, comfortable, understood
  • Relationship reasons: Quality of relationship with each parent
  • Lifestyle reasons: Rules, freedom, living arrangements
  • Sibling reasons: Wanting to stay with brothers or sisters
Key Point: Courts are more likely to give weight to views based on the child's genuine experiences and feelings rather than abstract preferences or reasons that seem coached.

Common Scenarios

Child Wants to Live with One Parent

When a child expresses a strong preference to live with one parent:

  • Court examines reasons for the preference
  • Considers whether preference is in child's best interests
  • May still order significant time with other parent
  • Looks at practical implications of the preference
  • Considers impact on relationship with other parent

Child Refuses Contact with a Parent

When a child refuses to spend time with a parent:

  • Court investigates reasons for refusal
  • Considers whether refusal is justified
  • May order counseling or therapeutic intervention
  • Could order supervised contact initially
  • May suspend contact temporarily in extreme cases

Conflicting Views Between Siblings

When siblings have different preferences:

  • Court considers each child individually
  • Weighs benefits of keeping siblings together
  • May make different orders for different children
  • Considers practical implications of separation
  • Looks at strength of sibling relationships

Limitations and Protections

What Courts Won't Do

  • Force children to choose: Courts don't make children pick between parents
  • Blame children: Children aren't responsible for court decisions
  • Expose children to conflict: Children are protected from adversarial proceedings
  • Follow wishes blindly: Views are considered but don't determine outcomes

Protecting Children

  • Professional intermediaries: Trained professionals obtain views
  • Confidentiality: Children's specific statements may be kept private
  • No pressure: Children aren't forced to express views
  • Age-appropriate processes: Methods suited to child's development
  • Ongoing support: Counseling available during and after proceedings

Impact on Parenting Arrangements

When Views Support Arrangements

Children's views may strengthen a case when they:

  • Align with other evidence about best interests
  • Are based on genuine experiences and relationships
  • Show understanding of consequences
  • Are consistent over time
  • Come from mature, capable children

When Views Don't Determine Outcomes

Courts may not follow children's views when:

  • Views conflict with safety concerns
  • Preferences seem influenced or coached
  • Views would harm long-term relationships
  • Child lacks understanding of consequences
  • Views are based on temporary circumstances

Practical Advice for Parents

Supporting Your Children

  • Don't pressure: Allow children to form their own views
  • Reassure them: Explain they're not responsible for decisions
  • Stay neutral: Don't ask children to choose sides
  • Provide stability: Maintain consistent, loving relationships
  • Seek support: Use counseling services when needed

What Not to Do

  • Don't coach: Never tell children what to say
  • Don't interrogate: Avoid questioning children about their views
  • Don't criticize: Respect children's relationships with other parent
  • Don't burden: Keep adult problems away from children
  • Don't promise: Avoid making promises about court outcomes

Building Strong Relationships

  • Quality time: Focus on meaningful interactions
  • Listen actively: Show genuine interest in children's lives
  • Be consistent: Maintain reliable presence and support
  • Respect boundaries: Allow children age-appropriate independence
  • Show love: Express affection and pride regularly
Remember: The best way to influence your children's views is to be a loving, consistent, and supportive parent. Genuine relationships speak louder than any words in court proceedings.

When Views Change

Evolving Preferences

Children's views may change due to:

  • Natural development and maturity
  • Changes in family circumstances
  • New experiences or insights
  • Improved relationships with parents
  • External influences (school, friends, activities)

Responding to Changes

  • Stay flexible: Be open to evolving arrangements
  • Communicate: Discuss changes with other parent when appropriate
  • Seek help: Use family counselors or mediators
  • Consider modification: May need to vary court orders
  • Focus on best interests: Ensure changes truly benefit children

Professional Support

When to Seek Help

  • Children are distressed about family situation
  • Children refuse contact with a parent
  • Views seem influenced or coached
  • Siblings have conflicting preferences
  • Children are caught in loyalty conflicts

Available Services

  • Family counselors: Help children process emotions
  • Child psychologists: Assess and support children's wellbeing
  • Family therapists: Work with whole family systems
  • School counselors: Support children's educational and emotional needs
  • Support groups: Connect with other families in similar situations

Conclusion

Children's views are an important but not determinative factor in family court proceedings. Courts carefully balance children's expressed preferences with their assessed best interests, considering factors like age, maturity, and the genuineness of their views.

As a parent, your role is to support your children through this difficult time without pressuring them or putting them in the middle of adult conflicts. Focus on building strong, genuine relationships with your children based on love, consistency, and respect.

Remember that children's views may evolve as they grow and circumstances change. Stay flexible, communicate openly (when age-appropriate), and always prioritize your children's wellbeing over your own preferences for specific arrangements.