I Wish the Views Were Clearer: Children's Wishes and Views in Australian Family Law

Abstract

In 2006, legislative changes were made to the Australian Family Law Act 1975. These changes included a revision of the matters that must be considered when determining children's best interests following parental separation, at Section 60CC. This section lists two ‘primary considerations’, which relate to the child's having a ‘meaningful relationship’ with both parents and ensuring that children are safe in their interactions with their parents and others in their lives. The first of the ‘Additional considerations’ under Section 60CC concerns ‘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 the child's views’. This consideration differs from that in the pre-2006 Act, which referred to a child's ‘wishes’ rather than her/his ‘views’. There is evidence, however, that those working in the family law system may not yet have made the shift towards understanding what these changes may entail.In this article I explore the differences between the concepts of ‘wishes’ and ‘views’ as they relate to children in family law matters. I argue that these concepts are qualitatively different, and that children's ‘views’ are far more encompassing than their ‘wishes’. Moving to a far broader understanding of children and their ability to understand issues that directly affect their lives may lead to the development of more comprehensive decisions about their futures.