Children’s Issues & Views

Family breakdowns are complicated and stressful for every member of the family, including children. We aim to help families manage by reducing the confusion, trauma and cost that is often a part of the process.

While you adjust to a new way of life, your child will be trying to understand these changes. Their living arrangements, time with each parent, sometimes even their school and friends can change, leaving them feeling powerless.

Children may also worry about their parents, especially if there are tension and arguments between you and your former partner.

If parenting arrangements can’t be resolved with mediation, you are likely wondering how the court will consider your child’s wishes.

Does the court consider the wishes of children when making decisions?

The primary consideration of the court in child-related matters is always based on what is in the best interest of the child. The first two things the court will establish are:

  • The child’s safety, and
  • The benefit of the child’s relationship with both parents

These things will always override any other factors, including the child’s wishes and views.

If the court is satisfied that the child is safe and benefiting from their relationship with both parents, the child’s views will also be taken into consideration.

The court will consider and give weight to the child’s views depending on:

  • The child’s age
  • The child’s level of maturity
  • How well the child can understand their situation and express their views about it

To determine your child’s understanding of the situation, the court will, in some matters, call on a qualified social worker, psychologist or independent family lawyer to spend time with your child. In some cases, the views are presented as a report to the court that all parties can read.

The natural result of this is that the views of teenage children are usually given more consideration than those of younger children.

How can my child express their views to the court?

Getting a child to express their views about where they would like to live can not be forced, but if a child does express their views, they will be considered to some degree by the court.

The court will, where appropriate, make orders for a meeting with a child psychologist or independent children’s lawyer who can record the child’s expressed feelings and present them to the court on behalf of the child.

The court will usually consider the child’s views as one part of the picture but not always the deciding factor. There may be a number of other things that the court deems as being in the child’s best interest.

Your lawyer will not be able to issue you a Section 601 Certificate that you will need if you choose to proceed with court actions. Attaining this certificate will require you and your former partner to attend formal mediation.

During a consultation with one of our family lawyers, we will help determine if collaborative family law is the right approach for you.

When can children make decisions for themselves about where they live?

Once a child turns 18, they are no longer considered a minor and the court can not make decisions about which parent they live with. Usually, before this age children will be able to express their views to their parents and together make arrangements that suit their needs.

Every situation is different, and there is no set age when a child under the age of 18 can choose where they want to live. The court will make this decision based on all of the relevant factors, including the wishes of the child.

How can Raftons help?

As family law specialists, we only deal with family law matters. Not only do we know the law from studying it, we understand how it affects real people in real-world situations every day.

If you have concerns about your family situation, court hearing or the welfare of your children, please contact one of our lawyers, and we will advise you on the best course of action to take.

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These fact sheets are designed to provide an overview of the relevant issues and systems so that you have a better understanding of the process.

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