In my many years' experience working on Family Law cases, and as a member of the Victoria Legal Aid Independent Children’s Lawyer Panel, I have been involved in numerous matters where children are of an age and stage of development that their views as to their desired living arrangements are important.
Clients often ask me in my private work how important a child’s views are and at what age those views are decisive. The answer is that each case is different and the Court will put a degree of weight on children’s views which will differ in every case, once it gives due consideration to all the facts.
No one age, such as 12 or 14, is decisive, but when children reach approximately 16, the Court will often give decisive weight to their views.
What does the Family Law Act say?
Section 60CC of the Family Law Act 1975 details a number of matters that are relevant to the best interests of children. The primary considerations in that section highlight the benefit to children of having a meaningful and positive relationship with both of their parents, and the need to protect children from harm and abuse.
The section lists a number of factors relevant to the best interests of children, which effectively involves the Court looking at all the facts of each case, to determine what outcome and living arrangements would promote the best interests of children.
60CC(3)(a) of the Family Law Act requires the Court to consider “any views expressed by the child and any factors (such as the child’s level of maturity or level understanding) that a Court thinks are relevant to the ‘weight’ it should give to the child’s views”.
Another important issue that arises in many Family Law cases is that one of the parties will allege that the other is unduly influencing the children, to express a view. That is often an offsetting factor against the weight that a Court should give to the children’s views.
In summary, each case is different on its facts and the Court will look at all the issues and any views expressed by children of a more mature age are important. The weight given to children’s wishes can also differ between different Judges.
In my experience there is no “one size fits all”.