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R & R: Children's Wishes

R & R: Children's Wishes

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Case Copied 4 February 2000 40 min read

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[2000] FamCA 43

FAMILY LAW ACT 1975

IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. EA 53 of 1999
File No. SY 6087 of 1996

R and R: Children's Wishes

EDITED REASONS FOR JUDGMENT OF THE FULL COURT

BEFORE:                 Nicholson CJ, Finn and Guest JJ
HEARD:                   21 September 1999
JUDGMENT:           4 February 2000

APPEARANCES:

Mr Knox of Counsel instructed by Broun Abrahams, Solicitors, DX 11551 Sydney Downtown, appeared for the Appellant Husband.
Mr Todd of Counsel instructed by B Hayward & Co., Solicitors, DX 11346 Hurstville, appeared for the Respondent Wife.

NAME OF APPEAL:         R and R: Children's Wishes
APPEAL NO.  EA 53 of 1999 from SY 6087 OF 1999
DATE OF HEARING:        21 September 1999
DATE OF JUDGMENT:     4 February 2000
CORAM:  Nicholson CJ, Finn and Guest JJ

CATCHWORDS: CHILDREN - Residence - Best Interests of the Child - wishes of the Child - Orders made by trial Judge not in keeping with wishes of the child - Whether wishes treated correctly - Harrison and Woollard (1995) 18 Fam LR 788, (H v W (1995) FLC 92-598) considered.

PRACTICE AND PROCEDURE - Family Reports - Desirability of counsellor asking child how he or she would feel if the Court does not give effect to wishes where the child feels comfortable to express wishes - Applicability to Child Representatives.

This was an appeal by the father of two children in respect of certain parenting and property settlement orders made by Moore J on 7 June 1999.

The children of the marriage are two boys who were aged 12½ and 10 at the time of trial. Both parties sought residence orders in their favour. Her Honour made a residence order in favour of the wife for both boys and ordered that she have responsibility for their day to day care, welfare and development. Further orders were made for contact between the children and the husband.

Her Honour also made orders for a property settlement that involved the sale of the former matrimonial home and the distribution of net assets amounting to $321,619. Moore J found that the parties had contributed equally to the property but that there should be an adjustment of 25% pursuant to s75(2) of the Family Law Act 1975. Counsel for the husband conceded that if the residence orders remained undisturbed on appeal, it would be very difficult for him to argue that there was any error on the part of her Honour in respect of the property orders.

The parties were married for approximately ten years before they separated in October 1994 at which time the husband left the matrimonial home. Since that time, the children lived in the family home with the wife. The husband’s occupation meant that he spent considerable periods of time in other parts of Australia and overseas, mainly in Asia. The wife and the children usually joined him for all or part of these postings during the marriage.

For the two years following separation it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FamCA 43
Decision Date: 4 February 2000

CaseChat Overview and Summary

The Full Federal Court considered an appeal concerning the weight to be given to the wishes of children in family law proceedings. The appeal arose from a dispute between the parents, R and R, regarding the future care and upbringing of their children.

The central legal issue before the Full Court was the proper approach to be taken by a court when determining the best interests of a child, specifically in relation to the weight to be afforded to the expressed wishes of the child. This involved considering how a child's age, maturity, and understanding should influence the court's assessment of those wishes.

The Court affirmed that while the wishes of a child are a significant factor to be taken into account under section 60CC(3)(a) of the *Family Law Act 1975* (Cth), they are not determinative. The weight given to a child's wishes must be proportionate to their age and maturity, and the court must be satisfied that the child has a genuine understanding of the issues involved. The judges emphasised that the ultimate paramount consideration remains the best interests of the child, which requires a holistic assessment of all relevant factors, not solely the child's expressed preferences. The court's reasoning underscored the need for judicial officers to exercise careful judgment in evaluating the reliability and significance of children's wishes, ensuring that such wishes are not given undue or insufficient weight in the decision-making process.

Orders