The Court is required to engage in a balancing exercise that involves weighing up the desirability of the children having a meaningful and substantial relationship with both parents against the need to protect the safety of children and ensure that they are not exposed to family violence or potential child abuse (see section 60CC of the Family Law Act 1975 (Cth)). Additionally, when determining parenting arrangements on a final basis, the Court seeks to satisfy their paramount duty of making Orders that are in the best interests of the children as identified in section 60CA of the Family Law Act 1975 (Cth).
So, Can the Court force the Children?
Specifically in relation to children expressed a desire not to spend time with one parent:
- Section 60CC(3)(a) of the Family Law Act 1975 (Cth) states that the Court is requires to consider “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; and
- Section 60CD of the Family Law Act 1975 (Cth) specifies that the Court is required to consider any views expressed by a child when determining what is in the best interests of the child.
Role of Child Expert Reports
The Court undertakes a process wherein it informs itself as to the most ideal parenting arrangements by seeking advice in the form of an expert report prepared by a court child expert, who is generally experienced or qualified in backgrounds such as child psychology or social work. Where a child expresses a view that they do not wish to see a parent, that view can be given some weight however, frequently, in practice:
- The older the child, the more mature their views tend to be and, thus, the more weight tends to be allocated to their views such that the Court is less likely to compel teenagers to spend time with both parents against their wishes; and
- The younger the child, the less articulate their views tend to be, or the greater the likelihood that their views may be informed by external factors such as parental manipulation or a subconscious desire to impress one parent, such that less weight tends to be attached to their views.
Case Example: Bondelmonte v Bondelmonte [2017] HCA 8
In the case of Bondelmonte v Bondelmonte [2017] HCA 8, which concerned the case of two (2) young boys who had travelled to America to spend time with their Father and expressed a desire to not return to Australia to resume living with their Mother, the Court held at [34] in relation to section 60CC(3)(a) that: “In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.” The primary judge in that matter, for example, had found that the Father was exerting influence upon his sons as to the lifestyle that he could offer to them in America such that the views expressed by the boys had been “contrived” by their father.
Role of the Independent Children’s Lawyer (ICL)
The Court may also inform itself by appointing an Independent Children’s Lawyer (ICL). The ICL’s role is to act as an honest broker in forming an independent view as to what is in the child’s best interests and presenting those views to the Court. As outlined in section 68LA of the Family Law Act 1975 (Cth), the ICL’s role may include speaking with the child to best understand how the child perceives the breakdown of the relationship and their desire to spend time with one or both parents. However, the ICL is not a mere mouthpiece for a child and they are not obliged to act on the child’s instructions when participating in the proceedings. Accordingly, although a child may express a view that they do not wish to spend time with or communicate with a particular parent, the ICL may form an alternate view which could then be presented to the Court. In practice, the ICL’s views are frequently given significant weight and can be determinative of the final parenting arrangements for children.
To Sum Up
In summary, even when children clearly express a preference not to spend time with or communicate with a particular parent, the Court retains the authority to make parenting orders that ensure children maintain meaningful contact with both parents. The decision always balances the child’s views, their safety, and overall best interests, taking into account expert reports, the input of an Independent Children’s Lawyer, and the specific circumstances of the family. This approach ensures that children’s welfare remains the central focus, while also promoting stable and supportive relationships with both parents wherever possible.
For expert guidance on parenting arrangements, contact Michael Vassili Lawyers for practical, child-focused advice.
