Australian family law recognises children have a right to enjoy a meaningful relationship with both their parents and to be protected from harm. Of the two considerations a court is required to give greater weight to the consideration of the need to protect the children from harm. If there is no identified harm, the courts aim provide children the opportunity to discuss where they feel most comfortable.
There is no concrete answer that determines the weight given to children’s preferences involved in disputes. The court, in most cases will seek the information from a child in order to gage how they feel about their current circumstances and their attitude towards the parents or guardian. It is highly unlikely it will ever be the sole determinate.
The maturity and age of the child will influence how much the court will listen. The older and more mature the child is, the more weight their expressed wishes will be given in court proceedings. Whilst the child’s preferred parenting arrangements are taken into consideration, there are many other factors that will contribute to the Judge’s final court order.
Important factors the court will also consider in conjunction with the child’s views include:
- Potential harm of the child;
- Living arrangement of the parents;
- Overall environment the child will be exposed to;
- Emotion, physical and intellectual support;
- Practical difficulty and expense that would be imposed to the child or guardians; and
- Relationship between the child and each of the parents
A study conducted by the Australian Institute of Family Studies suggests that both parents and children involved in family disputes believe it is appropriate for children to be actively involved in the process. The court will take their views into consideration but ultimately the court will determine what is best for the child and that might be inconsistent with the child’s expressed wishes; this is often true for difficult separations where violence may be a factor.
Parental orders are always difficult for the whole family, but it is important to have up-to-date and reliable information at hand. The team at Burke Mead understand the difficulties that arise in family issues especially when it comes to determining where the children will live. Contact the BurkeMead team today.