Children’s wishes inconsistent with their best interests
Best Interest Considerations
- The views of the children in this matter loom large. While the children’s views are important and are not to be ignored, they are not conclusive. It could not be otherwise.
- The Full Court of the Family Court in R v R has said:
There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children’s best interests.
- The legislation leaves a wide discretion for the Court in respect of matters which are relevant to the weight it gives to those views. Relevant factors going to weight have included:
- Child’s age and level of maturity;
- The strength of the views, and the length of time held by the child;
- How the child’s views were formed, for example whether they are well thought through, whether they are as a result of pressure on the child and whether they reflect the child’s own choice; and
- The likely consequences of an order contrary to the children’s views.
- The Court is in the exercise of its discretion bound by the relevant principles an enunciated in various authorities, including recent High Court authority in Bondelmonte their Honours held:
 The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. 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 s 60CC(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 terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child’s views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child’s age or maturity and level of understanding of what is involved in the choice they have expressed. Children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings. Section 60CC requires that attention be given by the court to these matters.
- Section 60CD deals with how the Court informs itself of views expressed by a child. The Court had before it evidence of the children’s views, not only by way of Child Inclusive Conference Memorandum to the Court dated 27 June 2017, but also by way of evidence in the mother’s Affidavit.
- It is important to reproduce some of the matters noted in the memorandum:
X said that she and Y would cry every Thursday and Friday before they had to go to their father’s and that Ms Weller would “force them to go”, saying “I’ll see you on Sunday.” She said they refused to spend time at their father’s home after he made them stand out in the rain with all the Christmas presents he had given them since he deemed that they were ungrateful.
X mentioned a number of times that she was “scared of Mr Weller”.
When X was asked what she was scared about, she became quite distressed and said that “he has threatened to take us away and we won’t see Mum ever again.” She said that she thought he was serious and he said that he would “take us overseas”.
X said she was also scared if Mr Weller comes to her (hobby omitted) matches since her friends will walk away from her because they are “all worried he’ll abuse them again” and that he still yells during the match “and it’s embarrassing”.
When X was asked if there was anything she wanted the Judge to know she said “I don’t want anything to do with him or to be around him and if they make me I will run away”. She also said that she did not want Y to have to go because “I help Y go through this and I don’t want him to have to do it alone – he’s as scared as I am.”
Y said that he sees his father when he “turns up” to (hobby omitted) games where he “embarrasses me and tries to talk to me”. Y said he gets nervous at these times because “he’s done stuff before – he caused a scene. He sometimes says things really loudly to make himself look like a really good father.”
Y said that Mr Weller once said he would “run away with us” and that he is still scared that he might do this…
Y talked about good times they had with Mr Weller… however he said “I just don’t want to go with him.”…
Both X and Y stated that they did not want to spend time with Mr Weller. The alleged incidents they recounted, referred mostly to events which occurred some time ago, however the children said that they remembered them well. Both expressed unease about him coming to their sporting fixates and, in the case of X, she could not think of anything that Mr Weller could do to make her feel differently about seeing him.
- The recommendation in the memorandum was as follows:
If the Court considers that either or both children should spend time with Mr Weller, it may be helpful if this were to occur in a professionally supervised setting.
- The mother submits that because of the children’s ages, their views should be afforded significant weight. Enmeshed in this, is the argument that in this instance the protection of the children from harm outweighs the benefit to the children of having a relationship with the father.
- The children’s relationship with the mother is a relationship that is a strong one. The children appear to be reliant on their mother to meet their daily physical and emotional needs. The mother’s ability to do so is a matter which the Court is not able to make findings about, except in so far that it appears there is no evidence which would suggest that she is not meeting their physical needs.
- The children’s relationship with the father is the subject of some controversy. The father submits to the Court that post separation and until January 2016 he enjoyed a close and loving relationship with the children and that it is the mother who is responsible for the state of affairs at present. The father appears to place the entirety of the responsibility for the state of his relationship with the children on the mother’s shoulders, and he states that the mother “has been so quick to take them away from me completely.” The father states that since separation, the mother “has not facilitated or encouraged the children to have a relationship with me but has also encouraged them to lie and be secretive about events they are involved in.” The apparent lack of acceptance of any responsibility for the state of affairs at present by the father is concerning to the Court.
- The parties had, until January 2016, taken reasonable steps for the children to spend time with the father. After January 2016 it appears to the Court that the mother has simply paid lip service to the children’s relationship with the father. Whether this is in fact so will be a finding for another day, but the mother’s evidence seems to be that she didn’t agree with the way the father parented, including not doing with the children what they wanted to do and embarrassing them in front of their friends.
- The father on the other hand seems to minimise the distress which the children are reported to suffer at his behaviour at times, which can be viewed as insensitive. The father seems to be of the mind that things should be done his way as he is the parent, rather than being “told what he should and shouldn’t do by his 13 year old child”. The father does not seem to understand that things which he views as having “really no substance” might indeed be very substantial and important to the children. It is little wonder that there is such a disjoint between father and the children.
- However, the father’s apparent lack of sensitivity towards the children’s needs in the view of the Court, in the factual matrix of this case, is not sufficient to deny the children a relationship with the father. Likewise, it is not fair to the children to place the onus on them on having to decide when and if they are going to spend time with the father.
- Having in place orders for time between the children and the father will have both a practical and an emotional effect on them. It is a change in circumstances which will have the effect of seeing them travel approximately 20km if they were to spend time at their father’s home and it may also mean that the father will attend at certain of their extracurricular activities if they are on the days and times when the children are spending time with the father.