Considering a child’s wishes in a divorce or separation

Here, we will explore the effects of separation on children and how the court takes a child’s wishes into consideration when making any final judgements on family law cases.

Effect of a separation on children

Unfortunately, children can be impacted by a separation or divorce just as much as the parents, if not more. This can especially be the case if they feel they have no say in the matter or are forced to choose between two parents. Matters can be complicated even further if the children are too young to fully comprehend the situation and the uncertainty of their future may be overwhelming and scary for them.

While attempting to navigate the emotional impact of a separation or divorce on your children, it’s also important to consider family law legislation and the way that the Court approaches parenting disputes. This is true regardless of whether your parenting matter goes to Court or not.

How does the Court determine what’s in the “best interests” of the child?

The Court will make decisions based on Section 60CA of the Family Law Act when determining what’s in the “best interests” of the child following a divorce or separation.

The Court must prioritise protection of the child from harm (both physical and psychological), along with emphasising the need for a child to have a meaningful relationship with both parents.

Other factors that are taken into consideration include:

• The opinion of the child
• the strength of the relationship between the child and each parent
• the child’s maturity, sex, lifestyle and background.

When taking the child’s opinion into account, the Court will consider their age, maturity, level of understanding and ability to articulate their viewpoints. In general, the older the child, the more weight will be given to their opinions.

How can a child give their opinion following separation?

Children are not typically called upon to speak during family proceedings, but there are several ways in which they can voice their concerns and wishes to the Court following a separation or divorce.

1. By speaking to a Family Consultant (usually a qualified social worker or psychologist ordered by the Court) at a Child Inclusive Conference. The Family Consultant will then record and report the child’s opinion to the Court.
   
   
2. By making a statement about their choice to an appointed expert such as a psychiatrist or psychologist who will then include the child’s opinion in their report to the Court.
   
   
3. By expressing their opinion to a court-appointed Independent Children’s Lawyer. This is someone who represents the child’s best interests. They make sure that the child is the focus of any decisions made about parenting arrangements, such as parental responsibility and the time a child lives with or spends with each parent.

It is important to note that there may be some circumstances in which the child’s wishes may not be considered. If a child’s opinion appears to be the result of manipulation or influence by a family member, less weight will be given to their statement. This may be the case, for example, if the child only makes their opinion known when in the presence of one parent, or if they only make the statement in private.

Seeking expert legal advice

Navigating through a separation or divorce can be incredibly stressful. Our Sydney family lawyers have extensive experience dealing with separation and other family law matters and are here to help guide you through the process and work out the best solution for you and your family.