• Presentation - R&R: Children’s Wishes [2000] FamCA 43

  • Appeal in the Full Court of the Family Court of Australia before Nicholson CJ, Finn and Guest JJ
    HEARD: 21 September 1999; JUDGMENT: 4 February 2000

  • Background

  • Facts

  • Issue at Trial

  • Orders Made

  • Appeal

  • Findings

  • Ancillary Issues

  • Statutory Framework

  • Gillick competence

    Gillick v West Norfolk and Wisbech Area Health Authority (1986) 1 AC 113
  • Full Court in H v W

    (1995) 92-598 at 81,947:
  • Hannon J in Doyle and Doyle

    (1992)92-286 at 79,128
  • Butler-Sloss LJ in Re P (Minor)

    (1992) 1 FLR (UK) 316 at 321, said:
  • Parties were married for approximately ten years before they separated 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 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 appeared that there were sensible and flexible arrangements between the parties as to contact. Father then lived in Bangkok for 2 ½ years for work reasons. This greatly distressed the children.Contact maintained over that period.

  • Upon return to Australia, “both boys expressed a preference for residing with their father although they both talked about seeing their mother as often as they could” (Counselling Report)

  • At trial, the children of the marriage were aged 12½ and 10. Both parties sought residence orders in their favour.

  • Her Honour relied heavily on Counsellors report based on 15 minute interaction between child and parent. The report was favorable to the mother and critical of the father.

  • Based on the counsellers Her Honour also expressed concern about the husband’s responses as reported by the Counsellor who considered that he appeared to embarrass both boys in a manner she considered inappropriate

  • Her Honour balanced the wishes of the children against factors favouring the children remaining in the mother’s care and had regard to “the husband’s limited insight into the effect of his conduct on the children’s future balanced development”. While accepting the children’s wishes were a weighty consideration, she viewed them in light of the children having missed their father while he was overseas, his now greater availability to them, and the Counsellor’s view that frequent and regular contact can meet the children’s desire to spend more time with him.

  • 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 father (alternate weekend + weeknight dinner).

  • Her Honour also made orders for a property settlement with an adjustment of 25% in favour of the wife.

  • The only issue pursued at the hearing of the appeal concerned her Honour’s treatment of the children’s wishes. Two principal arguments were advanced:

  • Appeal dismissed

  • The trial Judge had treated the children’s wishes in accordance with the law.

  • Her Honour had neither misunderstood nor made a mistake of fact in respect of the children’s wishes. The findings she made were open to her.

  • Obiter Dicta

  • Risk when considering children’s matter alongside property matter: children’s interest vs economic interest

  • Weight given to counselor’s report

  • Shared residence not considered as none of the parties sought it

  • UN Convention

  • Pre 1983: s64 FLA

  • Post 1983: s 64 FLA

  • current: s60CC FLA

  • It is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.

  • Adopted in Marion’s case

    (Secretary, Department of Health and Community Services v JWB and SMB) [1992] HCA 15; (1991-92) 175 CLR 218 Mason CJ, Dawson, Toohey and Gaudron JJ

  • “…whilst the wishes of children are important and should be given real and not token weight the court is still required to determine the matter in the child’s best interests and that may in some circumstances involve the rejection of the wishes of that child. The law to be applied in Australia is as stated by Hannon J in Doyle’s case, supra, and by Butler-Sloss LJ in Re P, supra, and in accordance with the statute.

  • “As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, the strength and duration of their wishes, their basis, and the maturity of the child, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.” [800]

  • “If the Court is satisfied that the wishes expressed by the child are soundly based and founded upon proper consideration as well thought through as the ability and state of maturity of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.”

  • “We are dealing with the welfare of a 14 year old boy. The courts, over the last yew years, have become increasingly aware of the importance of listening to the views of older children and taking into account what children say, not necessarily agreeing with what they want nor, indeed, doing what they want, but paying proper respect to older children who are of an age and the maturity to make their minds up as to what they think is best for them, bearing in mind that older children very often have an appreciation of their own situation which is worthy of consideration by, and the statutory duty of a court, under the Children Act 1989, to pay close attention in ascertaining the wishes and the views of children of an age and maturity which may give valuable help to the Courts.”

  • Report of Mothers Visit:

  • Report of Father’s visit:

  • 1. That children’s wishes are important and should not be departed from where they are soundly based and have been expressed without influence from either parent and are expressed against a background of particular facts and circumstances.

  • 2. That her Honour had made a mistake of fact in that the expressed wishes of the children were not that they should spend more time with their father but that they should live with him.

  • a) The Full Court in Harrison and Woollard [1995] FamCA 30; (1995) 18 Fam LR 788, (cited by her Honour as H v W [1995] FamCA 30; (1995) FLC 92-598)stressed the importance of trial judges giving proper weight to children’s wishes but did not say that they should not be departed from. Appropriate and careful consideration must be given to children’s wishes. They should not be simply treated as a factor in the determination of the child’s best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so. Her Honour had given effect to these requirements.

  • b) Her Honour was not required to determine that the wishes of the children were unsound, founded on improper considerations or influenced by others in order to make orders contrary to their wishes. While those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child’s wishes. 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. 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.

  • c) Baker J’s reference to the “validity” of the child’s wishes in Harrison and Woollard should not be understood as confining such a consideration to factors such as whether the wishes of the child were unsound, founded on improper considerations or influenced by others. His Honour was there referring to the overall validity of such wishes against the particular factual background found by the trial Judge in the case in question.

  • It would seem generally desirable that authors of family reports ask such a supplementary question where children do feel comfortable to express a preference on a matter before the Court.

  • The role of a child representative requires them to “inform the Court by proper means of the children’s wishes in relation to any matter in the proceedings” - see P and P (1995) FLC 92-615; A v J [1995] FamCA 56; (1995) FLC 92-619. It would also be desirable for child representatives to arrange for evidence to be before the Court as to how the child would feel if the Court did not reach a conclusion which accorded with the child’s wishes, provided of course that the child is comfortable to express a view.

    • Article 12

      1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

      2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

    • Application to Australia: Murray’s case at 80,257, the Chief Justice and Fogarty J said

    • As the Convention on the Rights of the Child had been “ratified by Australia but has not been given specific legislative recognition“ its status was that “it can thus be used to resolve ambiguities in domestic primary and subordinate legislation”.

    • (b) where the child has attained the age of 14 years, the Court shall not make an order under this Part contrary to the wishes of the child unless the Court is satisfied that, by reason or special circumstances, it is necessary to do so

    • provision criticized by various committees and in Wotherspoon and Cooper (1981) FLC 91-029 (Wood J)

    • “(b) the court shall consider any wishes expressed by the child in relation to custody or guardianship of, or access to, the child, or in relation to any other matter relevant to the proceedings, and shall give those wishes such weight as the court considers appropriate in the circumstances of the case.”

    • (3) Additional considerations are:

    • (a) 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 thechild’s views;

    • This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology. It should be followed in this country as part of the common law.”

    • Throughout the time in the office which was approximately 15 minutes the children appeared relaxed and happy with their mother

    • At first there was an uncomfortable silence as no-one appeared to know what to do.

    • Mr [ R ] made a comment to me that [Alan] was reading the cover of one of the books on my bookshelf which was titled “Good Loving: Great Sex”. [Alan] on hearing this turned his head away appearing to be embarrassed.

    • He said to [Mel] “I think you have a problem [Mel]” and [Mel] said “Why Dad” and he said “Your fly is open”. [Mel] looked at me, appeared uncomfortable, and did up his fly.

    {"cards":[{"_id":"55e52a366c5026d3368a075b","treeId":"5af3a61524b526f05000000d","seq":3489673,"position":1,"parentId":null,"content":"# Presentation - R&R: Children's Wishes [2000] FamCA 43\n\n"},{"_id":"55e52a366c5026d3368a075c","treeId":"5af3a61524b526f05000000d","seq":3489681,"position":1,"parentId":"55e52a366c5026d3368a075b","content":"## Background"},{"_id":"55e52a366c5026d3368a075d","treeId":"5af3a61524b526f05000000d","seq":3489968,"position":1,"parentId":"55e52a366c5026d3368a075c","content":"## Statutory Framework"},{"_id":"55e52a366c5026d3368a075e","treeId":"5af3a61524b526f05000000d","seq":3497133,"position":1,"parentId":"55e52a366c5026d3368a075d","content":"### UN Convention"},{"_id":"55e52a366c5026d3368a075f","treeId":"5af3a61524b526f05000000d","seq":3497741,"position":1,"parentId":"55e52a366c5026d3368a075e","content":"### **Article 12**"},{"_id":"55e52a366c5026d3368a0760","treeId":"5af3a61524b526f05000000d","seq":3497767,"position":1.5,"parentId":"55e52a366c5026d3368a075e","content":"1. States Parties shall assure to the child who is capable of forming his or her own views the **right to express those views freely** in all matters affecting the child, the views of the child being given due **weight in accordance with the age and maturity** of the child.\n\n2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law."},{"_id":"55e52a366c5026d3368a0761","treeId":"5af3a61524b526f05000000d","seq":3497672,"position":2,"parentId":"55e52a366c5026d3368a075e","content":"#### Application to Australia: *Murray's case* at 80,257, the Chief Justice and Fogarty J said"},{"_id":"55e52a366c5026d3368a0762","treeId":"5af3a61524b526f05000000d","seq":3497789,"position":3,"parentId":"55e52a366c5026d3368a075e","content":"As the Convention on the Rights of the Child had been \"**ratified by Australia but has not been given specific legislative recognition**\" its status was that \"it can thus be used to resolve ambiguities in domestic primary and subordinate legislation\"."},{"_id":"55e52a366c5026d3368a0763","treeId":"5af3a61524b526f05000000d","seq":3497800,"position":2,"parentId":"55e52a366c5026d3368a075d","content":"### Pre 1983: s64 FLA"},{"_id":"55e52a366c5026d3368a0764","treeId":"5af3a61524b526f05000000d","seq":3497148,"position":1,"parentId":"55e52a366c5026d3368a0763","content":"(b) where the child has attained the age of 14 years, the Court shall not make an order under this Part contrary to the wishes of the child unless the Court is satisfied that, by reason or special circumstances, it is necessary to do so"},{"_id":"55e52a366c5026d3368a0765","treeId":"5af3a61524b526f05000000d","seq":3497368,"position":2,"parentId":"55e52a366c5026d3368a0763","content":"#### provision criticized by various committees and in Wotherspoon and Cooper (1981) FLC 91-029 (Wood J)"},{"_id":"55e52a366c5026d3368a0766","treeId":"5af3a61524b526f05000000d","seq":3497798,"position":3,"parentId":"55e52a366c5026d3368a075d","content":"### Post 1983: s 64 FLA"},{"_id":"55e52a366c5026d3368a0767","treeId":"5af3a61524b526f05000000d","seq":3497371,"position":1,"parentId":"55e52a366c5026d3368a0766","content":"#### \"(b) the court shall consider any wishes expressed by the child in relation to custody or guardianship of, or access to, the child, or in relation to any other matter relevant to the proceedings, and shall give those wishes such weight as the court considers appropriate in the circumstances of the case.\""},{"_id":"55e52a366c5026d3368a0768","treeId":"5af3a61524b526f05000000d","seq":3490013,"position":4,"parentId":"55e52a366c5026d3368a075d","content":"### current: s60CC FLA "},{"_id":"55e52a366c5026d3368a0769","treeId":"5af3a61524b526f05000000d","seq":3497170,"position":1,"parentId":"55e52a366c5026d3368a0768","content":"### (3) Additional considerations are:"},{"_id":"55e52a366c5026d3368a076a","treeId":"5af3a61524b526f05000000d","seq":3497806,"position":2,"parentId":"55e52a366c5026d3368a0768","content":"(a) 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 thechild's views;"},{"_id":"55e52a366c5026d3368a076b","treeId":"5af3a61524b526f05000000d","seq":3497929,"position":2,"parentId":"55e52a366c5026d3368a075c","content":"## Gillick competence \n\n##### *Gillick v West Norfolk and Wisbech Area Health Authority* (1986) 1 AC 113"},{"_id":"55e52a366c5026d3368a076c","treeId":"5af3a61524b526f05000000d","seq":3497607,"position":1,"parentId":"55e52a366c5026d3368a076b","content":"It is that parental right yields to the child's right to make his own decisions when he reaches a **sufficient understanding and intelligence to be capable of making up his own mind on the matter** requiring decision."},{"_id":"55e52a366c5026d3368a076d","treeId":"5af3a61524b526f05000000d","seq":3490113,"position":2,"parentId":"55e52a366c5026d3368a076b","content":"### Adopted in Marion's case\n\n(Secretary, Department of Health and Community Services v JWB and SMB) [1992] HCA 15; (1991-92) 175 CLR 218 Mason CJ, Dawson, Toohey and Gaudron JJ"},{"_id":"55e52a366c5026d3368a076e","treeId":"5af3a61524b526f05000000d","seq":3497172,"position":1,"parentId":"55e52a366c5026d3368a076d","content":"This approach, though lacking the certainty of a fixed age rule, accords with experience and with psychology. It should be followed in this country as part of the common law.\""},{"_id":"55e52a366c5026d3368a076f","treeId":"5af3a61524b526f05000000d","seq":3497926,"position":3,"parentId":"55e52a366c5026d3368a075c","content":"## Full Court in *H v W *\n##### (1995) 92-598 at 81,947:"},{"_id":"55e52a366c5026d3368a0770","treeId":"5af3a61524b526f05000000d","seq":3497574,"position":1,"parentId":"55e52a366c5026d3368a076f","content":"“...whilst the wishes of children are important and should be given **real and not token weight** the court is still required to **determine the matter in the child’s best interests** and that may in some circumstances involve the rejection of the wishes of that child. The law to be applied in Australia is as stated by Hannon J in Doyle’s case, supra, and by Butler-Sloss LJ in Re P, supra, and in accordance with the statute."},{"_id":"55e52a366c5026d3368a0771","treeId":"5af3a61524b526f05000000d","seq":3497568,"position":2,"parentId":"55e52a366c5026d3368a076f","content":"“As a matter of practical day-to-day experience, the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the Court will attach varying degrees of weight to a child’s stated wishes depending upon, amongst other factors, **the strength and duration of their wishes, their basis, and the maturity of the child**, including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications. Ultimately the overall welfare of the child is the determinant. That is so because the legislation says so and also because long before specific legislation the practice of the Court in its parens patriae jurisdiction established that view.” [800]"},{"_id":"55e52a366c5026d3368a0772","treeId":"5af3a61524b526f05000000d","seq":3497922,"position":4,"parentId":"55e52a366c5026d3368a075c","content":"## Hannon J in *Doyle and Doyle* \n##### (1992)92-286 at 79,128 "},{"_id":"55e52a366c5026d3368a0773","treeId":"5af3a61524b526f05000000d","seq":3497911,"position":1,"parentId":"55e52a366c5026d3368a0772","content":"“If the Court is satisfied that the wishes expressed by the child are **soundly based** and founded upon **proper consideration** as **well thought through** as the ability and state of **maturity** of the child will allow, it is appropriate to have regard to those wishes and to give such weight to them as may be proper in the circumstances.”"},{"_id":"55e52a366c5026d3368a0774","treeId":"5af3a61524b526f05000000d","seq":3497942,"position":5,"parentId":"55e52a366c5026d3368a075c","content":"## Butler-Sloss LJ in *Re P (Minor)* \n##### (1992) 1 FLR (UK) 316 at 321, said:"},{"_id":"55e52a366c5026d3368a0775","treeId":"5af3a61524b526f05000000d","seq":3497532,"position":1,"parentId":"55e52a366c5026d3368a0774","content":"“We are dealing with the welfare of a 14 year old boy. The courts, over the last yew years, have become increasingly aware of the **importance of listening to the views of older children** and taking into account what children say, **not necessarily agreeing with what they want nor, indeed, doing what they want, **but paying proper respect to older children who are of an age and the maturity to make their minds up as to what they think is best for them, bearing in mind that older children very often have an appreciation of their own situation which is worthy of consideration by, and the statutory duty of a court, under the Children Act 1989, to pay close attention in ascertaining the wishes and the views of children of an age and maturity which may give valuable help to the Courts.”"},{"_id":"55e52a366c5026d3368a0776","treeId":"5af3a61524b526f05000000d","seq":3489690,"position":2,"parentId":"55e52a366c5026d3368a075b","content":"## Facts"},{"_id":"55e52a366c5026d3368a0777","treeId":"5af3a61524b526f05000000d","seq":3497815,"position":1,"parentId":"55e52a366c5026d3368a0776","content":"### Parties were married for approximately ten years before they separated at which time the husband left the matrimonial home. Since that time, the children lived in the family home with the wife. "},{"_id":"55e52a366c5026d3368a0778","treeId":"5af3a61524b526f05000000d","seq":3489914,"position":2,"parentId":"55e52a366c5026d3368a0776","content":"### The husband’s occupation meant that he spent considerable periods of time overseas, mainly in Asia. The wife and the children usually joined him for all or part of these postings during the marriage."},{"_id":"55e52a366c5026d3368a0779","treeId":"5af3a61524b526f05000000d","seq":3489906,"position":3,"parentId":"55e52a366c5026d3368a0776","content":"### For the two years following separation it appeared that there were sensible and flexible arrangements between the parties as to contact. Father then lived in Bangkok for 2 ½ years for work reasons. This greatly distressed the children.Contact maintained over that period."},{"_id":"55e52a366c5026d3368a077a","treeId":"5af3a61524b526f05000000d","seq":3489904,"position":4,"parentId":"55e52a366c5026d3368a0776","content":"### Upon return to Australia, “both boys expressed a preference for residing with their father although they both talked about seeing their mother as often as they could\" (Counselling Report)"},{"_id":"55e52a366c5026d3368a077b","treeId":"5af3a61524b526f05000000d","seq":3489895,"position":5,"parentId":"55e52a366c5026d3368a0776","content":"### At trial, the children of the marriage were aged 12½ and 10. Both parties sought residence orders in their favour. "},{"_id":"55e52a366c5026d3368a077c","treeId":"5af3a61524b526f05000000d","seq":3497196,"position":6,"parentId":"55e52a366c5026d3368a0776","content":"### Her Honour relied heavily on Counsellors report based on 15 minute interaction between child and parent. The report was favorable to the mother and critical of the father."},{"_id":"55e52a366c5026d3368a077e","treeId":"5af3a61524b526f05000000d","seq":3497226,"position":2,"parentId":"55e52a366c5026d3368a077c","content":"#### Report of Mothers Visit:"},{"_id":"55e52a366c5026d3368a077f","treeId":"5af3a61524b526f05000000d","seq":3497212,"position":1,"parentId":"55e52a366c5026d3368a077e","content":"Throughout the time in the office which was approximately 15 minutes the children appeared relaxed and happy with their mother"},{"_id":"55e52a366c5026d3368a0780","treeId":"5af3a61524b526f05000000d","seq":3497228,"position":3,"parentId":"55e52a366c5026d3368a077c","content":"#### Report of Father's visit:"},{"_id":"55e52a366c5026d3368a0781","treeId":"5af3a61524b526f05000000d","seq":3497205,"position":1,"parentId":"55e52a366c5026d3368a0780","content":"At first there was an uncomfortable silence as no-one appeared to know what to do. "},{"_id":"55e52a366c5026d3368a0782","treeId":"5af3a61524b526f05000000d","seq":3497207,"position":2,"parentId":"55e52a366c5026d3368a0780","content":"Mr [ R ] made a comment to me that [Alan] was reading the cover of one of the books on my bookshelf which was titled “Good Loving: Great Sex”. [Alan] on hearing this turned his head away appearing to be embarrassed."},{"_id":"55e52a366c5026d3368a0783","treeId":"5af3a61524b526f05000000d","seq":3497209,"position":3,"parentId":"55e52a366c5026d3368a0780","content":"He said to [Mel] “I think you have a problem [Mel]” and [Mel] said “Why Dad” and he said “Your fly is open”. [Mel] looked at me, appeared uncomfortable, and did up his fly."},{"_id":"55e52a366c5026d3368a0784","treeId":"5af3a61524b526f05000000d","seq":3489884,"position":7,"parentId":"55e52a366c5026d3368a0776","content":"### Based on the counsellers Her Honour also expressed concern about the husband’s responses as reported by the Counsellor who considered that he appeared to embarrass both boys in a manner she considered inappropriate"},{"_id":"55e52a366c5026d3368a0785","treeId":"5af3a61524b526f05000000d","seq":3489699,"position":3,"parentId":"55e52a366c5026d3368a075b","content":"## Issue at Trial"},{"_id":"55e52a366c5026d3368a0786","treeId":"5af3a61524b526f05000000d","seq":3559383,"position":1,"parentId":"55e52a366c5026d3368a0785","content":"### Her Honour balanced the wishes of the children against factors favouring the children remaining in the mother’s care and had regard to “the husband’s limited insight into the effect of his conduct on the children’s future balanced development”. While accepting the children’s wishes were a weighty consideration, she viewed them in light of the children having missed their father while he was overseas, his now greater availability to them, and the Counsellor’s view that frequent and regular contact can meet the children’s desire to spend more time with him."},{"_id":"55e52a366c5026d3368a0787","treeId":"5af3a61524b526f05000000d","seq":3489709,"position":4,"parentId":"55e52a366c5026d3368a075b","content":"## Orders Made"},{"_id":"55e52a366c5026d3368a0788","treeId":"5af3a61524b526f05000000d","seq":3489866,"position":1,"parentId":"55e52a366c5026d3368a0787","content":"### 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. "},{"_id":"55e52a366c5026d3368a0789","treeId":"5af3a61524b526f05000000d","seq":3489849,"position":2,"parentId":"55e52a366c5026d3368a0787","content":"### Further orders were made for contact between the children and the father (alternate weekend + weeknight dinner)."},{"_id":"55e52a366c5026d3368a078a","treeId":"5af3a61524b526f05000000d","seq":3497821,"position":3,"parentId":"55e52a366c5026d3368a0787","content":"### Her Honour also made orders for a property settlement with an adjustment of 25% in favour of the wife."},{"_id":"55e52a366c5026d3368a078b","treeId":"5af3a61524b526f05000000d","seq":3489717,"position":5,"parentId":"55e52a366c5026d3368a075b","content":"## Appeal"},{"_id":"55e52a366c5026d3368a078c","treeId":"5af3a61524b526f05000000d","seq":3497497,"position":1,"parentId":"55e52a366c5026d3368a078b","content":"### The only issue pursued at the hearing of the appeal concerned her Honour’s treatment of the children’s wishes. **Two principal arguments** were advanced:"},{"_id":"55e52a366c5026d3368a078d","treeId":"5af3a61524b526f05000000d","seq":3497509,"position":1,"parentId":"55e52a366c5026d3368a078c","content":"#### 1. **That children's wishes are important and should not be departed from ** where they are soundly based and have been expressed without influence from either parent and are expressed against a background of particular facts and circumstances."},{"_id":"55e52a366c5026d3368a078e","treeId":"5af3a61524b526f05000000d","seq":3497508,"position":2,"parentId":"55e52a366c5026d3368a078c","content":"#### 2. That **her Honour had made a mistake of fact** in that the expressed wishes of the children were not that they should spend more time with their father but that they should live with him."},{"_id":"55e52a366c5026d3368a078f","treeId":"5af3a61524b526f05000000d","seq":3489726,"position":6,"parentId":"55e52a366c5026d3368a075b","content":"## Findings"},{"_id":"5af3a8ec24b526f050000054","treeId":"5af3a61524b526f05000000d","seq":3489804,"position":0.5,"parentId":"55e52a366c5026d3368a078f","content":"## Appeal dismissed"},{"_id":"55e52a366c5026d3368a0790","treeId":"5af3a61524b526f05000000d","seq":3497382,"position":1,"parentId":"55e52a366c5026d3368a078f","content":"### The trial Judge had treated the children’s wishes in accordance with the law."},{"_id":"55e52a366c5026d3368a0791","treeId":"5af3a61524b526f05000000d","seq":3497472,"position":1,"parentId":"55e52a366c5026d3368a0790","content":"a) The Full Court in *Harrison and Woollard* [1995] FamCA 30; (1995) 18 Fam LR 788, (cited by her Honour as H v W [1995] FamCA 30; (1995) FLC 92-598)stressed the **importance of trial judges giving proper weight to children's wishes but did not say that they should not be departed from. **Appropriate and careful consideration must be given to children’s wishes. They should not be simply treated as a factor in the determination of the child's best interests without giving them further significance. When validly held reasons are departed from by the trial Judge, it is apparent that good reason should be shown for doing so. Her Honour had given effect to these requirements."},{"_id":"55e52a366c5026d3368a0792","treeId":"5af3a61524b526f05000000d","seq":3497479,"position":2,"parentId":"55e52a366c5026d3368a0790","content":"b) **Her Honour was not required to determine that the wishes of the children were unsound, founded on improper considerations or influenced by others in order to make orders contrary to their wishes**. While those considerations will be relevant in many cases, they are by no means the only issues that a trial judge must consider when considering a child's wishes. 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. 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."},{"_id":"55e52a366c5026d3368a0793","treeId":"5af3a61524b526f05000000d","seq":3497490,"position":3,"parentId":"55e52a366c5026d3368a0790","content":"c) **Baker J’s reference to the \"validity\" of the child's wishes** in *Harrison and Woollard* should not be understood as confining such a consideration to factors such as whether the wishes of the child were unsound, founded on improper considerations or influenced by others. **His Honour was there referring to the overall validity of such wishes against the particular factual background **found by the trial Judge in the case in question."},{"_id":"55e52a366c5026d3368a0794","treeId":"5af3a61524b526f05000000d","seq":3497384,"position":2,"parentId":"55e52a366c5026d3368a078f","content":"### Her Honour had neither misunderstood nor made a mistake of fact in respect of the children’s wishes. The findings she made were open to her."},{"_id":"55e52a366c5026d3368a0795","treeId":"5af3a61524b526f05000000d","seq":3497394,"position":3,"parentId":"55e52a366c5026d3368a078f","content":"### Obiter Dicta"},{"_id":"55e52a366c5026d3368a0796","treeId":"5af3a61524b526f05000000d","seq":3497439,"position":1,"parentId":"55e52a366c5026d3368a0795","content":"It would seem generally desirable that authors of family reports ask such a supplementary question where **children do feel comfortable to express a preference** on a matter before the Court."},{"_id":"55e52a366c5026d3368a0797","treeId":"5af3a61524b526f05000000d","seq":3497401,"position":2,"parentId":"55e52a366c5026d3368a0795","content":"The **role of a child representative ** requires them to \"inform the Court by proper means of the children's wishes in relation to any matter in the proceedings\" - see P and P (1995) FLC 92-615; A v J [1995] FamCA 56; (1995) FLC 92-619. It would also be desirable for child representatives to arrange for evidence to be before the Court as to how the child would feel if the Court did not reach a conclusion which accorded with the child's wishes, provided of course that the child is comfortable to express a view."},{"_id":"55e52a366c5026d3368a0798","treeId":"5af3a61524b526f05000000d","seq":3497341,"position":7,"parentId":"55e52a366c5026d3368a075b","content":"## Ancillary Issues "},{"_id":"55e52a366c5026d3368a0799","treeId":"5af3a61524b526f05000000d","seq":3497328,"position":1,"parentId":"55e52a366c5026d3368a0798","content":"### Risk when considering children's matter alongside property matter: children's interest vs economic interest"},{"_id":"55e52a366c5026d3368a079a","treeId":"5af3a61524b526f05000000d","seq":3497345,"position":2,"parentId":"55e52a366c5026d3368a0798","content":"### Weight given to counselor's report\n"},{"_id":"5af6d42669b53004ed000051","treeId":"5af3a61524b526f05000000d","seq":3497358,"position":3,"parentId":"55e52a366c5026d3368a0798","content":"### Shared residence not considered as none of the parties sought it"},{"_id":"5af3b35cb033bd17d8000050","treeId":"5af3a61524b526f05000000d","seq":3489278,"position":1.5,"parentId":null,"content":"Appeal in the Full Court of the Family Court of Australia before Nicholson CJ, Finn and Guest JJ\nHEARD: 21 September 1999; JUDGMENT: 4 February 2000"},{"_id":"5af3b04324b526f050000056","treeId":"5af3a61524b526f05000000d","seq":3489131,"position":2,"parentId":null,"content":"https://gingkoapp.com/rr-childrens-wishes"}],"tree":{"_id":"5af3a61524b526f05000000d","name":" Presentation - RR: Children's Wishes [2000] FamCA 43 Appeal in the Full Court of the Family Court of Australia before Nicholson CJ, Finn and Guest JJHEARD: 21 September 1999; JUDGMENT: 4 February 2000","publicUrl":"rr-childrens-wishes"}}