Separation, Divorce, and Children’s Wishes

Separation, Divorce, and Children’s Wishes

How Children’s Wishes are Weighed Against Best Interest

The one question all parents ask themselves when separating or going through a divorce is – Who will my child (or children) end up living with?

This is a complex issue that can require a ruling from the Family Court in the form of a parenting order. The Family Court’s main responsibility when issuing such an order is to do so with the best interests of the child in mind. Typically, the Family Court will order an equal shared parental responsibility arrangement, except in instances where child abuse or family violence is a known issue.

It is important to understand that an equal shared parental responsibility arrangement may not grant parents the right to spend equal amounts of time with their child. It is more that each parent has an equal or near equal say on important issues affecting the child’s upbringing.


Can My Child Decide Where They Want to Live?

In certain circumstances, your child or children can decide where they want to live. Children, typically in their early teens, can make their wishes known as to which parent they would like to live with. However, a child’s age is not the sole determining factor and the Family Court does acknowledge a correlation between age and emotional development.

In addition to giving due consideration to a child’s age, the Family Court will consider a child’s understanding and level of maturity when determining a parenting order. The older and more emotionally developed a child is, the more likely it will be that the child’s own views will have a significant bearing on the outcome of the proceedings.

For example, the views of a 15 year old will be given more weight generally compared to any expressed by an 8 or 10 year old. And for the sake of practicality, it may be more difficult for the Family Court to impose a parenting order that is at odds with a 15 year old’s own wishes.


Other Practical Considerations

To ensure the practicality of a parenting order, the Family Court will also look at:

  • The distance between each party and where they live
  • The impact that ‘equal time’ or ‘substantial and significant time’ will have on the child
  • Each parent’s ability to contribute to the upbringing of the child
  • Each parent’s ability to communicate with each other as necessary to uphold the order
  • Each parent’s ability to resolve any difficulties with the proposed arrangements, and
  • Each parent’s ability to make sure the arrangement is continually in line with the child’s best interests

In addition to the above, the Family Court may also take any number of other considerations into account if they are deemed to be relevant to the particular case.


How Does the Family Court Determine a Child’s Wishes?

When issuing a parental responsibility order, the Family Court does not usually hear from children directly, although children can make their views known via a family report.

This report is usually written by an independent family consultant with no ties to the parties involved and each parent may be interviewed with regards to what they think their child’s wishes are when and if the need arises.

Lastly, a Single Expert Witness — such as a qualified child psychologist or psychiatrist — may be called upon to conduct a more thorough report on the family’s dynamics. These findings can then be presented to the Family Court and considered accordingly.

Separation or a divorce is always hard and is a very stressful time for people. However, please remember that whatever happens, help is just a phone call away.

Feel free to call one of our friendly lawyers at AH2 Legal at (08)6161 0243 to make an appointment at your convenience to discuss any queries you might have.