Case Study
Are the views of the child relevant to parenting orders?
Solghi & Danwar [2022] FedCFamC2F 1654
Under the Family Law Act 1975 (Cth) (“the Act”), the Court gains the power to make parenting orders that are binding on all parties involved. In so considering what Order would be in the “best interests of the child”, the Court will consider the primary considerations as given under Section 60CC of the Act, being (a) the benefit of the child having a meaningful relationship with both parents, and (b) the need to protect the child from physical or psychological harm and from being subjected to abuse, neglect or family violence. Additional considerations as given under Section 60CC include (a) the views of the child.
How much weight will the Court afford to the views of the child?
The views of the child comprise one factor among an array of different considerations that may colour the Court’s assessment of what parenting order reflects the “best interests” of the child. The amount of weight the Court might place upon this factor is contingent on the age and maturity of the child, any undue influence of either parent, and any other consideration the Court deems relevant. Ultimately, the persuasiveness of evidence presented concerning the views of the child is circumstantial and considered by the Court on a case-by-case basis (Bondelmonte v Bondelmonte [2017] HCA 8).
In the case of Solghi & Danwar [2022] FedCFamC2F 1654, the Court held that the children’s views be given significant weight, as well as their maturity. The children were at an age where they were able to form and ascertain their own views. Whilst influenced by the Mother to some extent, the Court rejected the Father’s submission that the children’s views were solely or even primarily based on the Mother’s influence. Rather, it appears that their views have been formed by a combination of their own experiences and by some influence from the Mother. The children were also exposed to and impacted by family violence from the Father. Accordingly, this case demonstrates how the court prioritises the best interests of the children. Whilst it is rare for the Court to order a parent spend no time with their children, in this case, the children have not seen the Father in two years and have entrenched views that they no longer desire a relationship with him.
Need Guidance on Protecting Your Rights?