24.10.2022 By Amanda Millyard and Jessica Ragh

The weight to be given to views of the child in parenting matters.

One of the “additional considerations” which the Court must consider in determining what is in the child’s best interests is “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.” The Court typically informs itself of the views of the child by requiring that the child attend upon a family consultant report writer for the child to be interviewed by the report writer. The child’s views as detailed in the family consultant’s report are then considered at the time of the court hearing.

The recent decision of Justice Carew in Farina & Naima [2022] FedCFamC1F92 provides a useful example of the weight that the Court may place on a child’s wish not to spend time with or communicate with a parent. In this case the child was 13 years old, had always lived with her Mother and spent limited time with her Father despite there being an order requiring that she spend time with her Father. An experienced social worker had met with the child and in her opinion the child’s maturity was such that her views should be given considerable weight by the Court and further that the Court forcing the child to spend time with her Father would not be in her best interests. Justice Carew agreed with the opinion of the social worker. Justice Carew ultimately ordered that unless otherwise agreed in writing between the parents, the Father spend no time with the child save for at the instigation of the child.

Each family law case has its own unique nuances. For example, it may be relevant for the Court to consider whether a child has informed themselves about the views they express or whether they have been negatively influenced by a parent. In this way, the mature age of a child will not be the only factor that the Court takes into account in determining the weight to be given to the child’s views.