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Divorce is an unfortunate reality of the world that we live in. While some manage to navigate the emotional minefield with minimal anguish, most end up embroiled in bitter legal proceedings. While financial concerns are often of great importance when separating, far more important are matters of the heart: children. When making arrangements for children in a divorce, the Court will place the greatest amount of importance on the “best interests” of the child. But do those best interests include the child’s wishes?

Effect of a divorce on children

While the adults involved in a divorce are undoubtedly going through one of the most emotional and stressful periods of their lives, the same may be said for their children. There are some significant and obvious differences however, in how a child experiences divorce compared to an adult. For one thing, the adult is making the decision to become divorced whereas a child has no say in the matter. For another, an adult is not forced to take sides whereas a child may be torn between two parents.

Moreover, depending on the age of the child in question, they may not be fully able to comprehend the situation and the uncertainty of their future may be overwhelming. Parents who are trying to navigate a divorce are likely to feel a great deal of concern about their children while hoping that their child’s wishes will be taken into account.

The Family Law Act

The Court will make decisions based on Section 60CA of the Family Law Act in which the best interests of the child must be paramount when deciding custody arrangements in a divorce proceeding. But how will the Court determine what exactly are the child’s best interests? According to Section 60CC, the Court must prioritise protecting the child from harm (both physical and psychological) and emphasizing the need for a meaningful relationship with both parents. Additional, but secondary concerns that the Court should consider are: the opinion of the child; the strength of the relationship between the child and each parent; and the child’s demographic (maturity, sex, lifestyle, background, etc.).

What weight will be given to the child’s opinion?

When taking the child’s wishes into account, the Court will consider their age, maturity, level of understanding and ability to articulate their viewpoints. In general, the older the child, the more weight will be given to their expressed opinions.

How may the child express their opinion?

While generally children are not called upon to provide evidence in a divorce proceeding, there are still a few ways for them to express their wishes to the Court. First, they can voice their opinion to a Family Consultant while attending a Child Inclusive Conference. The Family Consultant will then record and report the child’s opinion to the Court. Second, they may make a statement about their choice to an appointed expert such as a psychiatrist or psychologist who will then include the child’s opinion in their report to the Court. Finally, a child may express their opinion to the court-appointed Independent Children’s Lawyer.

When will a child’s wishes be undermined?

If a child’s opinion appears to be the result of manipulation or influence by a family member, less weight will be given to their statement. This may be the case, for example, if the child only makes their opinion known when in the presence of one parent, or if they only make the statement in private.

Other considerations

The presence of siblings and the practicality of parental circumstances (income, occupational limitations, etc.) will also affect the Court’s decision regarding child custody arrangements.