There is a misconceived idea amongst some parents, that once their child turns 12 years of age the child is at liberty to make up his/her own mind about the living arrangements as amongst their separated parents.
The wishes of a child are one of many considerations that the Court must take into account when determining what parenting arrangements are in a child’s best interests. In considering those wishes, the court needs to take into consideration not only the specific circumstances of the child and the family, but also the emotional maturity of the child and the child’s ability to adequately understand and articulate those wishes.
As with anything, not all 12, 13 or 16 year olds have the same level of emotional maturity and so the Court must analyse that wish and the reasons for it. Often that is done in the context of a family report (for discussions with respect to family reports, see my blog here) or a Child Inclusive process (for details about the Child Inclusive Model see my blog here). That report, conducted by a qualified social scientist known as a ‘Family Consultant’, details not only those wishes, but should also explore the nature of and reasons behind those wishes and the child’s ability to fully appreciate the practical effect of those wishes.
Of importance is the fact that a child has a right to a meaningful relationship with both of their parents, provided that they are not at risk. That is, the child’s wish, does not ‘trump’ the risk.
Whilst ordinarily, the older the child, the more we are listening and taking into account the wishes of a child, it does not mean that it is a ‘given’ that at a particular age the child’s wishes is all that is taken into consideration. The High Court case of Bondelmonte & Bondelmonte [2017] HCA 8 has considered this idea, in the context of very strong wishes expressed by a 16 year old. In that case, the Court said:
“The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests”.
In short, the wishes are only one of many aspects that a Judge is required to take into consideration in determining what arrangements are in the best interest of a child, no matter the age.
I would be happy to discuss this further with you, taking into consideration the specific circumstances of your matter and your child – Book an appointment with Orlena today.
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- Parenting arrangements for children
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