When does a child get who they live with?

When does a child get who they live with?

This is a common question asked of our Family Lawyers and the answer is when they turn 18 years of age. However, a Court can place weight in the views a child expresses.

In parenting matters the best interests of the child are the paramount consideration of the Court. Consequently, the Court is able to make orders that are sometimes in direct opposition to a child’s views if the Court is persuaded such orders are in the child’s best interests.

According to the Family Law Act the Court when making parenting orders about a child must consider any views expressed by the child that the Court thinks are relevant, to the weight it should give to the child’s views. This means that children’s views are not determinative but dependent on their maturity or level of understanding. As such in more cases than not, a 15 year old child’s views will be given more weight than a 10 year old child’s views, but there is no “magic age” as to when views are given weight.

In matters where children express strong views a Court may order the appointment of an Independent Children’s Lawyer (“ICL”). An ICL acts as a best interests representative for the child/ren but is not required to act on that child’s instructions. An ICL is given all the rights and responsibility of a party to the proceedings (i.e. the parents) and is expected to form their own independent view of the case. You can read further about ICL’s in our earlier articles.

Importantly an ICL has a duty to ensure that any views expressed by a child are fully put before the Court. It should also comfort you to know that the ICL’s are specially trained and experienced practitioners skilled in identifying if a child has been coached as to what to say.

A further way children’s views can be taken into account by the Court is by way of a family report or child inclusive memorandum prepared by a Family Consultant. Family Consultants are specially trained staff of the Court tasked with interviewing and preparing reports for the Court. A Court will place great weight on the Family Consultant’s views and often these reports will contain quotes from the children expressing their views.

If you are having issues with parenting arrangements for a child, call Kate Walker, Accredited Specialist Family Lawyer on 4324 7699.

Skills

Posted on

February 28, 2019

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