LawTalk Blog

Does the opinion of my child count when deciding which parent to live with?

family law and children's issues

The Family Law courts are concerned with the best interests of the child and when making a parenting order about a child the court must consider any views expressed by the child.

The courts have recognised that children do have views about their lives after parental separation and are often capable of expressing their views.

However, when considering any views expressed by a child the court must also consider any factors, such as the child's maturity or level of understanding. These factors will affect the appropriate weight that is to be given to the views of the child.

How are my child's views shared with the court?

The most common ways in which the court is able to consider the child's views is by having regard to anything contained in a report prepared by a family consultant and/or by appointing an independent children's lawyer to independently represent the child. In preparing the family report, where age appropriate, the consultant will undertake meetings with the children to ascertain their views.

Children are not allowed to attend court or give evidence in person in court.

Will the court make their decision based on my child's views?

When a court makes an order about children it is called a parenting order.

It is important to remember that views expressed by a child are one of many factors that the court must consider when making a parenting order about a child.

When deciding whether to make parenting orders the court must regard the best interests of the child as the paramount consideration. A court cannot make a decision about who a child will live with or spend time with based only on the views expressed by the child. For example, a child's views to live with one parent may not be consistent with a history of that child suffering abuse or neglect at the hands of that parent or someone else in the household of that parent.

There is a range of considerations the court must take into account to help decide what will be in the best interests of the child and each case is treated separately.

Because the court must consider many diverse factors when making parenting orders about who a child will live with or spend time with, the particular circumstances of each case are very important.

This means that in some cases the views expressed by a child might be given greater weight by the court than in other cases where the circumstances are different.

It is important to seek experienced Family Law legal advice in relation to these matters.

How do I get started?

For more information about your rights and entitlements along with the rights and entitlements of any of your children during your Family Law issue, get in touch with Andersons Solicitors.

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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