Loading...

What about Children’s Wishes?

11 May 2022

For separated parents, trying to sort out what time the children will spend with each parent is not easy. The Family Law Act says that the foremost consideration when making such a decision is what is in the child’s ‘best interests’. One of the most commonly considered aspects of ‘best interests’ are ‘child’s wishes’.

So, if parents can’t agree and the court has to make an order, how much consideration is given to child’s wishes?

A child’s age – how young is too young?

When it comes to the area of shared parenting, the Family Law Act has a number of considerations it must take into account, on those being any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

The Family Law Act does not stipulate a specific age a child must be in order for their wishes to be taken into consideration. According to previously decided cases, the court will take a child’s wishes into account at about 12 years of age. The court may consider a child’s views between the ages of about 10 and 12, depending on the individual child. The weight the court will give to the child’s wishes or whether the court will consider the views of a child aged 10 and above will depend on the maturity of the child and how clearly their views are expressed. The wishes of a child under 10 years old is unlikely to be considered, as it will not be apparent to the court whether it is the child’s views or a parent’s view expressed through the child.

How can a child’s wishes be heard?

Children cannot give evidence in court, so how is it that a child’s true wishes in regard to who they want to live with or the amount of time they want to spend with each parent is provided to the court?

A child’s wishes are captured in a Family Report, which is then given to the court and relied on as to what a child wants.

Getting a family report

There are a number of ways that a Family Report can be obtained. These include:

  • On an informal basis, parents may go to a Family Relationship Centre (FRC) and participate in ‘child-inclusive’ mediation. This will involve the child speaking to a Child Psychologist and the child’s wishes being relayed to the parents. No written report is prepared.
  • Parents can mutually agree to get a Family Report prepared.

However, if the matter is going to court, a Family Report will need to be obtained for the children’s views to be considered by the court. If there is a dispute and one the parents is opposing a Family Report to be made, when the matter comes before the court, the court may order a Family Report be privately obtained (i.e. paid for by the parents privately) or prepared by one of the Family Court’s own counsellors, (at no cost to the parents), or through an Independent Children’s Lawyer (ICL), (i.e. a lawyer who represents the child).

What weight is given?

There are many cases in which the court considers children’s wishes, however it really depends on the different circumstances, the maturity of the child’s views, the child’s age and their ability to clearly express their views.

Recently, the court determined a case where (2) children (aged 12 and 10) had strong wishes about which parent they preferred to live with. The 12-year-old child wanted to live with his father, whereas the 10-year-old child wanted to live with her mother. The court recognised that the 10-year-old was less mature than her 12-year-old brother, however the court saw that she expressed a clear view not influenced by her mother. Both children’s views were heard and the court made an order that the children live with the parent specified, even though the father lived in Brisbane and the mother lived in Adelaide. In circumstances involving older children, in their teen years, if their views are clear, the court will usually give significant weight to their wishes and make orders for parenting arrangements accordingly.

Examples:

  1. The court recently had to determine in a case involving 2 daughters (aged 13 and 15) who did not want to spend time with their father, whether significant weight should be given to the daughter’s views. Although the children’s negative views were reinforced by their mother, the daughters were found to have a sophisticated understanding of the situation and were of an age and maturity where their views were given significant weight.
  2. The older a child is does not necessarily mean the child has a higher level of maturity or a clear view of what they want. In another case involving children’s wishes, a 13-year-old child with autism expressed views to spend more time with his father. The court however, recognised that due to the child’s vulnerability and influence in the parent’s conflict, the child’s views were not ignored but were not given a determinant weight either.

At Michael Lynch Family Lawyers, we understand that children’s matters can be complex. It is important to get the right advice early and focus on what is best for the children in any given situation. If you would like to discuss your personal circumstances, please contact us on
(07) 3221 4300 or [email protected] for a no obligation fixed-fee initial consultation.

Image of father and daughter, accompanying family law article "What about Children's Wishes?"
2022-05-11T11:49:41+10:00

Client Testimonials

I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.

A.O., Kedron
I like your friendly service and the ability to speak to my solicitor directly.
R.G., Wishart
The professionalism and reliability delivered by Amy Honan was fantastic. I had an urgent matter around my property sale and Amy offered to provide assistance over a weekend if I required it – that’s above and beyond!
E.F., Nundah
I like that my lawyer treated me like a friend and kept jargon to a minimum. She was easy to contact and kept me informed.
L.R., Samford

Thank you Debra for all the work you did for me, you both made the process manageable and brought sense to the chaos.

R.B., Toowong
Amy’s work was extremely professional but above all she has a manner and wisdom in dealing with people under stress. I will be recommending your firm to anyone that requires assistance.
K.H., Augustine Heights
I really appreciated the happiness of your secretarial staff.
G.C., Clayfield
I was guided through a really difficult time with expertise of Michael Lynch Family Lawyers. I am more than happy with the outcome of mediation.
J.H., Windaroo
So pleased to have had a good, sound and knowledgeable firm.
C.W., Brookfield

Michael Lynch Family Lawyers know what they are talking about.

R.M., Warwick
Your team is professional, warm, friendly and real.
N.R., Crows Nest
Thank you for providing me with a professional yet empathetic approach to gain the best outcome for me. My solicitor was excellent in explaining the processes and in representing me in Court. You have great customer service!
T.V., Everton Park

My solicitor is a good listener. My documentation maintained the high moral ground.

S.S., Hamilton
May I take this opportunity to express my gratitude to you and your staff for the excellent professional services I received. In a word, priceless.
D.H., Hendra
Thank you for the great newsletter. Your article on “Coping with Christmas” is brilliant – clear, caring and helpful. Thanks again!
C.T., Bribie Island
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
A.A., Eatons Hill
I appreciate you being upfront with fee estimates. You also have a fantastic website and the seminars REALLY helped to get me focussed.
T.C., Tarragindi
I was impressed by my solicitor’s attention to detail and her concern for me, and that the process was explained to me and that I understood it at all times.
B.W., Chapel Hill
Many thanks for your assistance – life is now great – I’m moving on.
J.K., Mansfield
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
R.P., Cleveland
Your team’s communication with me was exceptional, I knew exactly what was happening.
A.A., Eatons Hill

Your staff is knowledgeable, professional and very calm.

A.C., Helensvale

At Michael Lynch Family Lawyers I got professional and ‘no-nonsense’ advice, costs were within quoted amounts and my matter was resolved quickly – well done!

L.R., Ascot

I was always confident that I was getting the very best advice.

T.S., Flinders
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
S.L., Moranbah
Thank you for the outstanding legal advice you have provided and professionalism in which you conduct yourself. I am truly thankful that it was you who represented me.
M.T., Stafford

Thank you for being very personable, professional and always providing me with the most appropriate advice in my times of difficulty. The other party’s lawyers were extremely aggressive, while Michael Lynch Family Lawyers remained calm and professional.

S.D., Parkinson

I’m very glad ‘Michael Lynch Family Lawyers’ is my lawyer and not the other side’s solicitor.

S.S., Hamilton
I appreciate my lawyer’s professional approach and her being on top of my situation.
N.S., Mt Gravatt
I liked my solicitor keeping things as simple as possible.
S.M., Clayfield
My solicitor provided a personalised service, prompt and quick responses and cost information prior to my commitment.
G.C., Southport
Your newsletters are great, I appreciate them.
K.B., Carina

Thank you, you kept me sane in a difficult situation and gave me the encouragement and the confidence to keep going. You made me feel extremely comfortable.

A.M., Chambers Flat

We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.

N.B., Brisbane
My family lawyer was very helpful in assisting me to combat a very ugly situation without stooping to the low levels that the other solicitor attempted to take us.
M.J., Manly
Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
P.B., Carindale
Michael Lynch Family Lawyers always gave me competent and knowledgeable advice. I was consistently kept up to date. The meetings and phone calls were kept business-like, yet caring and thoughtful of my emotional state at the time. Thank you.
J.S., Holland Park

After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.

K.M., Paddington
A personalised and professional service. Information has been clear and provided timely to assist my decision-making.
S.S., Hamilton
I always felt that the service provided by Michael Lynch Family Lawyers was of a high standard. Each time, after appointments I came away feeling secure. Keep doing what you are and maintain the ‘family feel’ that permeates your services.
C.W., Brookfield

My lawyer has been an amazing help through this stressful time. I will remember her help for the rest of my life. Thank you.

J.H., Brisbane

I would like to thank your firm for the support and compassion shown while dealing with my matter.

C.M., Brisbane
Amy, thanks very much to you and your team. Throughout my dealings with MLFL I have been continually impressed with your level of professionalism and, in particular, your understanding of circumstances and the articulate way you conduct yourself. I was completely satisfied with today’s outcome and without your experience and expertise in family law I doubt that the result would have been achieved.
M.R., West End
Michael is very personable and very good at covering the material and explaining the strategy.
J.O., Hawthorne

I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!

B.S., Brisbane

Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.

B.T., Clayfield

You, guys, provide extraordinary service.

A.O., North Brisbane

Michael Lynch Family Lawyers are easy to deal with, and your systems are good.

D.T., Ferny Grove

I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.

J.H., Wellington Point

Many thanks to Stephanie for her help and support through this time, I was incredibly impressed with her work.

L.K., North Lakes

Thank you very much to everyone at Michael Lynch Family Lawyers. Thank you for helping me get my life back and make a fresh start. To have that fresh start without fear and anxiety is priceless.

A.A., Perth
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
S.C., Nundah

My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.

R.R., Brighton
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
C.W., Brookfield
Lovely to deal with and provides a balanced view in what are very difficult circumstances.
A.C., Morningside
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
J.S., Brisbane
Amy, thank you. You have been diligent, accurate and pro-active for the entire duration of my matter. I appreciate it.
R.P., Cleveland

I was very impressed with the initial interview. Everything was well-explained, and the advice was honest about what I should expect.

C.M., Morningside
My lawyer acted with professionalism in all her dealings with me and with the lawyer on the other side. I was always kept in the loop. I liked her approach. Thanks.
D.S., Coorparoo