There is a common misconception that when children reach a certain age, they can then decide for themselves as to which parent they want to live with. The reality is that the Family Law Act does not prescribe a certain age at which children have the autonomy to make decisions in relation to the live with and spend time with arrangements with their parents.
The age of your child is one factor to be considered by the Court but is not the sole determinant of their views being taken into account. Your child’s wishes are just 1 of 16 factors to be considered by the Court in determining the best interests of the child. Interestingly, a child’s wishes is not one of the primary considerations the Court must take into account in deciding the best interests of the child. The two primary considerations are the benefit of the child having a meaningful relationship with both parents and protecting the child from harm.
The more appropriate question is what weight the Court will apply to your child’s wishes. Your child’s level of maturity, insight and understanding are other important considerations. The Court will also consider whether your child’s wishes are well informed and whether your child has been influenced by their parents.
The Court can be assisted by an independent evaluation of the child by way of a family consultant, or single/Court expert, who will meet with your child and provide a report to the court as to your child’s understanding of the current parenting arrangements, based on their assessed maturity level and capacity to make decisions. The appointment of an Independent Children’s Lawyer who meets with the children can also assist in providing an independent view of what is in the child’s best interests.
The recent case of Garram & Garram  FamCAFC 239 has an important discussion around the consideration of the child’s views. This case was an appeal by the mother of the primary judgment made in August 2019 for the children to live with the father. In this case, the elder child who was 15 years of age had expressed a view to live with the mother, and the younger child who was 12 years of age had expressed a view to live with the father. Both children also expressed clear views to remain living together.
A ground of the mother’s appeal was that the primary judge failed to have any proper regard to the wishes of the elder child and/or to the wishes of both children to remain together. First, it was said that as the elder child was nearly 16 years old, there was a greater responsibility on the primary judge to explain why the elder child’s wishes should be rejected.
The primary judge relied heavily on the Family Report dated 27 May 2019. The elder child told the family report writer, “I want to live with my mother and see my dad on some weekends and some of the holidays. I don’t want to be separated from my sister”. The younger child, on the other hand, said that she would like to live with the father but did not want the mother to get upset with her for choosing him.
In the family report writer’s conclusion, she returned to the differing wishes of the children and opined that “[t]his poses a significant dilemma for the [children] in that it is a priority for them to remain living together in one household.”
The family report writer took into account the “mother being assessed as less than child-focused in regard to promoting the children’s relationship with the father. The report writer noted that they would have serious concerns about the children spending time with the father in accordance with their wishes as it would seem likely this would evolve into a situation where loyalty demands made by the mother would trump any desire for substantial and significant time with the father. Basically, it would become too hard for the children to manage over time.”
It was made quite clear by the family report writer that she considered it most undesirable for the children to be separated.
The family report writer also explained her concerns as follows:
“Pseudo-maturity in an intelligent 15-year-old is often mistaken for the capacity to make good choices, after taking into consideration all possible consequences, both short-term and long-term, when in fact the young person is ill-equipped to make decisions that are best left up to the adults in her life who love and care for her. As pointed out by the mother in paragraph 12 of her Affidavit, filed 13 May 2019, [the elder child] is still only 15 years of age and needs guidance.”
“Both have suggested that they would cope if the Court ordered them to return to [Region B] to live with the father; however, [the elder child’s] preference is to live with the mother [in Northern Sydney] and [the younger child’s] preference is to live with the father [in Region B].”
The [family report writer] goes on to caution the Court against placing too much weight on the children’s expressed wishes particularly the [elder child] who she says is: ‘far less resilient that [the younger child] and is less able to cope with the loyalty demands that appear to be [sic] being placed upon her by the mother.’
The [family report writer] expressed the view that, given [the elder child’s] immaturity and lack of psychological resilience, the Court should be cautious about the weight it attributes to her views. The [family report writer] wrote:
“When deciding how much weight to place on each child’s wishes, it will be important to consider the impact that the parental conflict has been having on the emotional and psychological well-being of the children. [The elder child’s] decision to limit the amount of time she spends with her father may attributable to her being a teenager; however her presentation and behaviour during the interviews suggest that she is far less resilient than [the younger child] and is less able to cope with the loyalty demands that appear to be being placed upon her by the mother. [The elder child’s] alignment with the mother, whilst currently being used as a means of protecting her psychological wellbeing, may well evolve into her rejecting her father over time, should the parental conflict continue. This would have long reaching consequences for her emotional and psychological development and well-being”.
The appellate judge noted that clearly, the primary judge did not fail to have regard to the children’s views because, as the above paragraphs show, they were expressly considered. However, the primary judge was cautious as to the weight to be given to them, especially those of the elder child because of the influence of the mother on her.
The mother’s submissions are that as a 16-year-old young adult, the elder child should be entitled to choose her own parenting arrangements. Whilst there is some force in that proposition, the weight to be given to the child’s views depends on the maturity of the child expressing them and the circumstances in which they find themselves. However, as already discussed, the family report writer advised, and the primary judge accepted, that in this matter the elder child’s views should be approached with some caution.
The mother’s submissions, if accepted, would entirely override the younger child’s preference to live with the father because there was no suggestion, in this case, that the children live in separate households. That was the children’s greatest concern and the family report writer advised strongly against it. Why then, should the elder child’s views be accorded determinative weight over the younger child’s?
As her Honour’s reasons for judgment make clear, the children’s views were not the only matter taken into consideration by the primary judge. What particularly weighed in the balance was the primary judge’s view that the present arrangement was not working and was leading the children to be stressed and unhappy and that if the children lived with the mother their relationship with the father “will be further eroded and eventually lost”.
The appellate judge found that the primary judge did give necessary consideration to these issues. As s 60CC(3)(a) of the Act and Bondelmonte v Bondelmonte (2016) 259 CLR 662;  HCA 8 at 675 make clear, the Court may consider any matter it thinks relevant, which bears on the weight to be given to the children’s views. This is what the primary judge did. The appellate judge was of the opinion that this ground (and the balance for the grounds that formed the basis of the appeal) had not been made out, and the appeal was dismissed.
It can be difficult for parents when children are telling them, for apparently valid reasons, that they want to change their arrangements. It is important to never act unilaterally on this. If possible (and safe) to do so, open dialogue with the other parent about the issue. If you cannot resolve the issue, then seek advice from a specialist family lawyer as early as possible.
Author: Geri Friend-Ngui, Lawyer