Does The Court Consider Children’s Wishes During Divorce In Victoria?





Does the Court Consider Children’s Wishes During Divorce in Victoria?


Does the Court Consider Children’s Wishes During Divorce in Victoria?

Professional Introduction (First Person)
As a family law professional who has worked with many separated families, one of the questions I hear most often is, “Will the court listen to what my child wants?” It’s a deeply emotional issue for parents, and understandably so — children are often at the centre of separation and divorce, and their voices matter. But how those voices are heard, how much weight they are given, and how they influence parenting decisions in Victoria can be more complex than many people realise. In this article, I’ll walk you through exactly how children’s wishes are considered in family law matters, what the court looks at, and what parents should understand when navigating these sensitive situations.

Table of Contents

Divorce vs Parenting Decisions – Understanding the Difference

Before discussing children’s wishes, it’s important to understand that divorce and parenting decisions are separate legal processes in Victoria and across Australia.

Divorce deals with only one question: has the marriage broken down irretrievably? It does not determine:

  • Where the children live
  • Who makes major decisions about their lives
  • How much time they spend with each parent

Those issues are addressed in parenting arrangements, which may be agreed by parents or determined by the court through parenting orders. It is within these parenting matters — not the divorce itself — that children’s wishes become relevant.

Does the Court Consider Children’s Wishes?

Yes. The court can and does consider children’s wishes when making parenting decisions in Victoria. However, it is not as simple as asking the child directly or allowing them to “choose.”

The law requires the court to consider any views expressed by the child, but those views are only one part of a much broader assessment called the “best interests of the child” test.

This means children’s wishes are considered carefully — but not always followed exactly.

How Much Weight Does the Court Give a Child’s Wishes?

The weight given to a child’s wishes depends on several factors, including:

  • The child’s age
  • The child’s maturity and emotional understanding
  • The strength and consistency of the child’s views
  • Whether the child’s views appear influenced or pressured
  • Whether the child understands the long-term consequences

Generally:

  • Older teenagers often have strong input and their views carry significant weight.
  • Younger children may still have their views considered but the weight will be less.

There is no magic age where a child “gets to choose.” Even at 16 or 17, a child’s views are not automatically decisive, though they may be highly influential.

How the Court Hears a Child’s Views

Children are not asked to give evidence in the courtroom or speak directly to the judge. Instead, their views are communicated through trained professionals in a child-focused way.

The court may gather a child’s views through:

  • A Family Report Writer (part of a family report)
  • An Independent Children’s Lawyer (ICL)
  • Child-inclusive mediation processes
  • Therapeutic assessments in more complex matters

This protects children from the stress of legal proceedings while ensuring their voices are heard safely and sensitively.

What Is a Family Report?

A Family Report is one of the most important tools the court uses to understand a child’s wishes and overall family dynamics. It is prepared by a court-appointed psychologist or social worker.

A Family Report may include:

  • Interviews with each parent
  • Interviews with the child (if appropriate)
  • Observation of interactions between the child and each parent
  • Assessment of the child’s emotional and psychological needs
  • Discussion of any allegations of family violence
  • The professional’s recommendations for parenting arrangements

Family Reports carry significant weight in court because they provide expert, independent insight.

The Role of an Independent Children’s Lawyer (ICL)

In more complex or high-risk matters, the court may appoint an Independent Children’s Lawyer. The ICL does not represent either parent — they represent the child’s best interests.

The ICL will:

  • Gather information from schools, counsellors and psychologists
  • Meet with the child (if appropriate)
  • Ensure the child’s views are placed before the court
  • Advocate for arrangements that promote the child’s safety and wellbeing

The ICL plays an especially important role in cases involving allegations of harm, abuse, neglect or complex family dynamics.

Age, Maturity and Other Factors

While age is relevant, maturity is often more important. Children develop at different rates, and some may be capable of expressing meaningful views at a young age, while others may struggle to understand the consequences even as teenagers.

The court may consider:

  • Whether the child can articulate clear reasons for their preference
  • Whether the child’s views seem stable or inconsistent
  • Whether the child understands the permanence of the decision
  • Whether the child’s preference is practical or emotional

For example, a young child who says “I want to live with Mum because she lets me stay up late” may not demonstrate mature reasoning. But an older child who expresses concerns about safety or stability may have their views taken very seriously.

Concerns About Pressure or Coaching

The court is extremely cautious about situations where a child’s views may be influenced, coached, or pressured by one parent. Signs of coaching may include:

  • Children repeating adult language
  • Sudden, extreme changes in views
  • Children expressing hostility they don’t understand
  • Children appearing frightened to express views that differ from a parent’s

If the court believes a child has been pressured, the weight given to their stated wishes may be significantly reduced. In serious cases, coaching can negatively impact the credibility of the influencing parent.

How Family Violence Affects Children’s Wishes

In cases involving family violence, children’s wishes may be shaped by trauma, fear or loyalty conflicts. The court is highly alert to these issues. A child may:

  • Want more time with a safe parent
  • Fear expressing negative views about a violent parent
  • Express love for a parent who has perpetrated violence
  • Feel torn or responsible for a parent’s emotions

The presence of family violence can significantly impact how the court interprets a child’s views. Safety is always the top priority.

Why a Child’s Wishes Are Not the Only Factor

Even though the court listens to a child’s wishes, it cannot base its decision solely on those wishes. Children may express preferences for many reasons, including:

  • Comfort and familiarity
  • Fear of conflict
  • Desire not to “hurt” one parent
  • Emotional loyalty
  • Short-term desires that conflict with long-term welfare

The court’s role is to consider the child’s wishes within the broader context of their welfare, needs and safety.

How Children’s Wishes Fit Into the “Best Interests” Test

The Family Law Act requires the court to base all parenting decisions on the best interests of the child. A child’s wishes are one of the factors in this test, but far from the only one.

The best interests test includes:

  • Protecting the child from harm, abuse or neglect
  • Ensuring meaningful relationships with parents where safe
  • The child’s emotional and psychological needs
  • The capacity of each parent to meet the child’s needs
  • The child’s views and preferences
  • Practical considerations such as distance, schooling and stability

Because many factors interact, children’s wishes may be a strong influence in some cases and a minor influence in others.

Practical Tips for Parents Navigating Children’s Views

When your child expresses strong feelings about where they want to live or how they want their time divided, it can be emotionally overwhelming. Here are some practical, child-focused tips:

  • Avoid asking children to choose – This places enormous emotional pressure on them.
  • Encourage open conversations – Let them share feelings without judgment or leading questions.
  • Reassure them – Children often fear hurting one parent’s feelings.
  • Seek professional support – Child psychologists can help children express themselves safely.
  • Avoid speaking negatively about the other parent – Criticism can shape or distort children’s views.
  • Document major concerns – If safety is an issue, having evidence is crucial.
  • Get legal advice early – Misunderstanding this process can lead to costly and stressful mistakes.

Final Thoughts

The court absolutely considers children’s wishes when making parenting decisions in Victoria, but those wishes are never the sole deciding factor. Instead, they form part of a wider assessment focused on the child’s emotional, physical and psychological wellbeing. Every family is different, and every child’s situation must be handled with sensitivity, care and a strong understanding of the law.

If you’re navigating divorce or parenting proceedings and want to understand how your child’s views may influence the outcome, speaking with an experienced family lawyer can give you clarity and confidence. The team at Call A Family Lawyer can guide you through this complex area and help ensure your child’s best interests remain at the heart of every decision.