The jurisdiction of Family Law in the Federal Circuit and Family Court of Australia spans far and wide especially when it comes to parenting orders. These orders can affect your children in many aspects of their lives including how they interact with both your former spouse and yourself. Sometimes, the children may not like the orders made and that can become a frustrating issue for both parties and the children.
The family law team at Longton Legal have had to deal with a few such cases recently and the outcomes were drastically different, but each demonstrating how the Court would treat the “views expressed by a child” in different types of cases.
In one matter, the older of two children, who are 6 and 4 respectively, had been very vocal in showing her displeasure on spending time with their father. She would tell her mum that she didn’t want to go, and would even throw tantrums in front of her dad on occasions.
This matter went to trial and notwithstanding the older child’s wishes, the primary judge ordered that the children’s contact with the father to continue to increase at a rate of 1 additional day per 6 months until they spend 4 nights in a fortnight plus half of the school holidays at their father’s home.
On the other hand, another set of children, aged 11 and 13, who have voiced their preference to spend less time with their dad, and also went to trial, had the judge listening to their wish and gave final orders reducing the father’s time with the children to 2 nights per fortnight plus 2 weeks of their term 4 holidays.
What are the factors that made the judge listen to one child but not the other?
The Court is bound by law to make orders that it considers to be in the best interest of the children and one of the factors to consider under section 60CC of the Family Law Act 1975, is the “views expressed by a child”. However, in determining the amount of weight to give to such views, the Courts have primarily looked at a number of factors. They include, the maturity of the child, the strength of the view and the length of time it is held by the child, how the child’s views were formed, and the likely consequences of an order contrary to the child’s view.
In particular, in the case of the younger child, a family report writer observed that the child behaved very differently and seemed to enjoy the father’s company once the mother was out of sight. On the contrary, the older children were able to articulate their reasons with considerate thoughts and a level of assertion when speaking to the family report writer and were considered more believable.
If your child did not like the orders made by the Court to spend time with your former spouse, you ought to remember that it is your responsibility to encourage them and at times, it does not hurt to remind them that you call the shots, not them. It is also helpful to try and engage your former spouse in these matters and if all else fails, through an experienced family lawyer, to try and resolve these issues.
*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*
Special Counsel | Accredited Family Law Specialist NSW
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