Y is for young person’s wishes – A- Z of Family Law

Parenting proceedings, pursuant to the Family Law Act 1975 (Cth), place a children’s best interests as the paramount consideration (section 60CA). The Act then sets out (section 60CC) a variety of subclauses that can be used to arrive at a determination. One such factor is ‘any views expressed by the child’ (section 60CC(2)(b)).

A question many parents ask is, just how conclusive are a child’s wishes?

The rule of thumb is that the older a child is, the more weight is attributed to their wishes. However, the Act is clear in that no one sole consideration under section 60CC is determinative. Therefore, although a child may wish to never see one of their parents, a court may not necessarily reflect this outcome within the final orders.

The Division Two decision of Eckhardt & Eckhardt [2024] FedCFamC2F 271 in the Federal Circuit and Family Court of Australia is a clear example of a scenario where a relatively old child (15yo) expressed firm wishes which were not reflected in the orders.

Judge Jenkins was confronted with the following situation:

· The child ‘X’ was 15yo at the time of the Final Hearing.

· X was male and physically appeared much older than he was.

· He had lived with his father for the previous 18 months, and he wished to continue to do so.

· His mother argued that X was unsafe in the father’s care and should be moved into her care.

Relevantly, Judge Jenkins commented that “Many would argue upon looking at him that there is no point in making any orders with respect to his care as they would be unenforceable.” [1].

Through the course of the Final Hearing and the evidence on hand, the Court was able to make findings that X was at significant risk of psychological harm due to:

· The father’s chronic alcohol use.

· The father’s lack of insight into the effect of his behavior on X.

· The lack of prospects of the father rectifying his behavior moving forward, given his conduct, adherence to orders, and his evidence.

The parties naturally expressed their concern about X’s adherence to the orders, should the Court determine that a change of residence was to occur. However, without evidence on hand as to threats by X to run away, and with evidence on hand that X was relatively compliant, the Court could not conclude that there was no utility in making orders contradictory to his wishes.

Judge Jenkins ultimately determined that X should be immediately returned to his mother’s care, that there should be a moratorium on X’s time with the father for 2 months so as to allow X to ‘settle in’ with the mother, and that various injunctions restricting the father’s alcohol consumption be made. It was considered that these arrangements were in X’s best interests, particularly as they were arrangements that would promote his safety.

It was noted that “The Family Consultant shall be requested to explain to X that the court has taken his wishes into consideration but has determined that it is still best for him to live with his mother and that he is expected to remain living with his mother” [77].

The Eckhardt decision reminds parties that:

1. A child’s wishes are a strong consideration before the Court, particularly so as the child grows older.

2. Nonetheless, a child’s wishes are but one consideration; the Court’s jurisdiction under the Act to make orders in the best interests of the child will rarely be displaced entirely on the sole basis of a child’s wishes.

3. The Court will look unfavorably on parents who cannot show insight into how their behavior can negatively impact their children.