The Family Law Courts are concerned with making orders that are in the best interests of the child. The Courts recognise that children have opinions about what should happen after their parents separate, and the Courts will consider the wishes of the child.
However, when considering the wishes of the child, the Court must also consider factors such as the child’s maturity and level of understanding. These factors will determine how much weight the Court applies to the wishes of the child.
How does a child share their wishes with the Court?
The most common ways the Court is able to obtain and consider the wishes of a child is by considering anything contained in a report prepared by a family consultant and/or by appointing an independent lawyer to represent the child.
Often the family consultant and independent children’s lawyer will meet with the child in order to obtain their wishes. The child will not be asked to attend Court to give evidence.
What does the Court do after hearing the wishes of the child?
The Courts are obliged to make orders that are in the best interests of the child. The Court will consider the wishes of the child, as well as other relevant factors (such as the capacity of the parents to care for the children), and make a decision as to what is in the best interests of the child.
Sometimes the Court will determine that what the child wants is not in their best interests. For example, a child may express a wish to live with a particular parent but evidence has been presented to the Court to suggest that the parent has a history of abusing the child. The Court may determine that there is a safer alternative place for the child to live.
Every case is different and the Courts will consider the individual circumstances of each family when they make orders. It is important to seek legal advice from an experienced lawyer in relation to these matters. If you would like to speak to a lawyer about your separation, you can get in touch with Racheal Garra at Garra Lawyers on 0413 973 063.