When the Family Law Act was first enacted, the concepts of custody and guardianship were used to denote different parental duties. These terms have now been replaced by the all-encompassing concept of parental responsibility that relates to all of the duties that parents have to their children. But how much sway does the views of your child or children have over the way you are to exercise your parental responsibility?

Compared to adults, children under the age of 18 have limited legal capacity under the law. In fact, the law considers children to be less capable of being able to look after themselves and it is generally accepted that the child’s parents have this responsibility. Exceptions do exist to this general assumption and the Act has always acknowledged that the views and wishes of the child should be considered by a court in determining what is in the best interests of the child. But the court will have the final say in what is in the child’s best interest when determining parental responsibility and associated responsibilities such as living arrangements.

The paramount consideration of the court in making a parenting order is the best interests of the child and the Act specifically provides that when making such an order the court may take into account the views of the child. The court is given mandatory directions to consider specific matters, described as primary considerations and additional considerations, in deciding what may constitute the best interests of the child. The views of the child are an additional consideration, but are nevertheless a relevant consideration. The court must consider any views that are expressed by the child and apply such weight as is appropriate in the context of the family and circumstances, having regard to the child’s age and degree of maturity.

The inclusion of the views of the child in the additional considerations to be considered by the court does not create autonomy for the child. The court remains the decision-maker tasked with protecting the best interests of the child and is not obliged to make an order in conformity with the child’s wishes if it is of the view that it would not be in that child’s best interests.

Contact us at O’Brien, Connors & Kennett to discuss your family or other legal matters