Following a marriage breakdown in which a child is involved, the child custody process can often be tiresome and stressful. Frustrated parents may inadvertently overlook the desires of children or assume they know what they want. So what happens if a child does not want to spend time with one parent following a divorce?
In all child custody arrangements in Australia and according to the Family Law Act 1975, the court considers the best interests of the child to be paramount. In the case of a no-fault divorce, meaning a divorce which is not the fault of one spouse and where violence is not apparent, the court will consider a number of factors which equate to a child’s best interests.
What constitutes the child’s best interests?
The court will assess two primary considerations for the child’s best interests: the need to protect the child from harm, which may include the infliction of, or exposure to neglect, abuse or family violence, and the benefit to the child of maintaining a relationship with both parents.
The court may also consider a number of additional factors in a custody arrangement. These can include the benefit to the child of receiving parenting which helps them reach their physical, mental and emotional potential; the child’s relationship with each parent and other close family members including grandparents, and the benefit and importance for an Aboriginal and Torres Strait Islander child to embrace and maintain their culture, and how the parenting order may impact that.
Domestic Violence and its Impact on Divorce
Family Lawyer Reveals the Tell-Tale Signs of a Divorce
How will the court acknowledge the child’s views?
When assessing the child’s views and desires in the arrangement – for example, spending time with one parent only – the court will firstly assess the primary considerations for the best interests of the child. The court will then consider the age and maturity of the child and the basis and rationality of the child’s views, prior to considering their desires.
Under the Family Law Act 1975, an Independent Children’s Lawyer can be appointed to act in the child’s best interests. An Independent Children’s Lawyer can be requested by the child, appointed by the court, or requested by an organisation or person who is concerned for the child’s welfare, for example a psychologist or social worker.
The court may also assign a family consultant to conduct a report to determine the best interests of the child and communicate the child’s views to the court. An interview takes place between the parents, the children, and the family consultant. The subsequent report compiles factors which the family consultant believes are in the best interests of the child based on the views expressed in the interview. If the child expresses a wish to not spend time with one parent, this will be factored into the recommendations.
If you are going through a divorce and would like some more information about child custody laws in Australia, or if you need legal advice on your custody arrangement, contact Owen Hodge Lawyers on 1800 770 780.