Narkis & Narkis 2014 FamCA 113

A child aged 11 years was described by the mother as intelligent and strong-willed (temperament). The judge noted that the child had been put in a position where the child determined what she will do with her father, and the judge ruled that this was not appropriate (parenting style permissive).  The child also appeared to want to make a choice about which private school to attend.

The judge noted that information had been presented by the mother that the child was dissatisfied with the husband over financial matters, showing that the child was aware of and was very much included in discussions about the family’s problems (child’s need to know).

The judge noted that the child had an adult sister from the mother’s former marriage and this sister gave an affidavit about discussions with the child. The mother reported that the sister wanted to protect the child but the judge preferred the sister to help the child by not embroiling the child in adult disputes (capacity to protect).

The judge noted that he was able to make a finding only after evidence had been tested in Court.  The judge had only untested affidavit evidence available in the interim hearing, and no expert reports.

The judge ruled that a child’s wishes need to be assessed by a person who is independent of the parents.