One of the most common, and emotionally loaded, questions people ask during separation is, “Can the children decide?” Can they choose where to live, and who to spend time with, and how much weight should be given to their wishes.
In this episode, Ben and Heather are joined by clinical psychologist Kate Gray to discuss children’s wishes in separation. Kate is Director of Family Focus Psychology in Melbourne and works closely with children and families navigating separation.
Kate helps us to understand the psychological side of children’s wishes, including how influence, pressure and loyalty conflicts can quietly shape what children say they want. Topics covered include:
Bondelmonte v Bondelmonte – mentioned by Ben in this episode, this is a case where the judge did not adhere to the wishes of the child
AppleSpotifyAmazonPocketcastiHeartRadioGoogle
Benjamin Bryant: Hello everyone. Welcome to our latest episode all about children’s wishes. I’m your host, Benjamin Bryant from Bryant McKinnon Lawyers. One of the most common — and emotionally loaded — questions parents ask during separation is this: Can the children decide? Can they choose where they live? Can they say who they want to spend time with? And how much weight should their wishes really carry? Today, we’re unpacking that question carefully, because while children’s wishes are important, they don’t exist in a vacuum.
Benjamin Bryant: To explore this topic, I’m joined by my partner and specialist family lawyer, Heather McKinnon, and our guest Kate Gray. Kate is a clinical psychologist and Director of Family Focus Psychology in Melbourne, where she works closely with children and families navigating separation. She recently presented at the Pacifica Conference on the topic “Children’s Wishes: Wading through a sea of influence,” where she explored how children’s views are shaped by their development, their relationships, and the emotional environment around them. In this episode, Kate will help us understand the psychological side of children’s wishes — including how influence, pressure and loyalty conflicts can quietly shape what children say they want. Heather will guide us through how children’s wishes are treated in family law, and how the legal system works to balance listening to children with protecting their wellbeing.
Benjamin Bryant: This is an important conversation for parents who want to do the right thing by their children — without placing adult decisions on young shoulders. If you’re navigating separation and worried about how your child’s voice fits into the process, we hope today’s episode brings clarity and reassurance. Let’s get started.
Benjamin Bryant: Welcome back, Heather. Thanks for being here.
Heather McKinnon: Thanks, Ben.
Benjamin Bryant: And welcome to Kate Grey. Welcome to The Family Matters Show.
Kate Gray: Thank you very much.
Benjamin Bryant: Excellent. Thank you so much for being here. Kate, I just wanted to start by setting the scene first. Parents often hear the phrase the child’s wishes and assume it’s straightforward from a psychological perspective. Is it ever that simple?
Kate Gray: No, it’s never that. It’s never straightforward. It’s never simple. The children are affected by external influences and their own personal circumstances. In the context of separation, these wishes are emotionally loaded, and children often say what reflects emotional safety for them, fear or relationship concerns. And it’s very much in the moment, rather than a clear or independent preference about living arrangements that are in their best interests. It’s our role to differentiate between a child’s voice and their true wishes, and this involves interpreting what is driving their expressed views.
Benjamin Bryant: Excellent and Heather. I know as an independent children’s lawyer, there’s a difference between a child’s views and a child’s wishes, isn’t there?
Heather McKinnon: Absolutely. I’m not in Kate’s world, but over, the 40-odd years in practice, especially as an ICL, you can absolutely see what Kate talks about in the report. So we have to meet kids. And often a parent will turn up with the kid, and you know that they’ve had the kid out in the carpark. So when you meet this lady, tell her this. And our role’s not to do what Kate does, but what is clear is kids are kids. Their brain is not an adult brain. And it’s such a complex world. It’s really, really distressing when you see a really intelligent child who’s in a war zone trying to be hypervigilant about what do I say next? They are absolutely in the middle of it, and their survival senses are really heightened. But, you know, you and I, when we’ve got kids in the office or take them out and get them to make a hot chocolate or something and just chat about school. I mean, we’re not there to talk about any of things that Kate talks to them about, but we get to see a little bit of what Kate sees, and it’s really horrible when kids are in that war zone.
Benjamin Bryant: Yeah. And I guess the difference for us Heather as ICLs, we’re meeting the children, we’re not interviewing the children.
Heather McKinnon: Yeah.
Benjamin Bryant: And Kate, recently last year at the Pacifica conference, you spoke about children’s wishes being shaped by a sea of influence. Can you explain what that means and go into some more detail about the influences that are at play for children during separation?
Kate Gray: Sure. So I don’t want it to be all awfully negative because there are some really positive influences as well. Unfortunately, as family report writers, we’re often trying to draw out the good and the bad and find out what the true wishes are. So I do want to talk about some of the positive influences like secure attachment and connections and relationships with siblings and friends and their environment, their community, their activities, the common interests and just parental guidance, which is developmentally appropriate. They’re all really important. There are also negative influences, though, such as parental conflict, family violence, which are justified as well. They might push children towards aligning with one parent, and those are really valid concerns as well. Their own strengths and difficulties can also influence their wishes, including their stages of development, maturity, cognition, neurodiversity, their capacity to self-regulate and interpret what’s going on. There are also, perhaps some undue influence on the children as well. This can be such as triangulating, and that’s where the parents, it may be inadvertent, but they involve the children in their own dispute. There can be some manipulation. I mean, there’s a lot riding on the decisions that are being made. And parents can pressure the children to adopt their views or feelings. So some of them are not good, but some of them are positive and they all need to be considered.
Benjamin Bryant: And Heather and I, Kate, spend a lot of time talking to clients about conflict and the impacts that it has on children, because a lot of separated couples think that what’s going to damage the children is the separation of the couple, or the moving of the house, or the change of the school or the stepparent and things like that. But kids can be actually really quite resilient in that sense. And it’s the conflict that can really have the greatest impact on them. Yeah.
Kate Gray: Yeah, it mostly does unfortunately,
Benjamin Bryant: Heather, there’s a very common belief that once a child turns 12, they get to decide where they live. Is that actually true in family law?
Heather McKinnon: It’s so interesting how the school systems got us thinking chronological ages to determine maturity. I like to give the example. I sit on a couple of education boards and there are kids as young as 12 and 13 doing HSC four-unit maths. Like you’ll have these genius kids who just come out of nowhere with a maths brain. That doesn’t mean that they’re old enough to make decisions about every other area of their life. It’s definitely not chronologically age-related. It’s what Kate said. It’s developmentally how mature they are to be making decisions about their own future. We know that somewhere during high school, many kids start to develop a very strong sense of themselves. But it’s a period of 5 or 6 years, and there’s this huge variation. So what we have to talk to parents about is they might be in a dispute. Their little ones are in year two and three, and they’re saying, but when they’re in year six, they’ll say, what’s going to happen and you have to water it down and say it. It’s not to do with what year they’re at school or what age they are. Get rid of some of those myths. But certainly when we’ve got kids who are in year eight or year nine and they’re emotionally and psychologically strong kids, and they can articulate a lot better about what’s going on than often the adults in the conflict can. So that’s what Kate’s job is. She’s there to really look at each little one. Where are they up to what’s happening in their life, and to help us understand what’s best for them. You can’t use numbers.
Benjamin Bryant: We still get this question on a daily basis, and it’s widespread, this idea of what happens at 12. From my understanding, since I’ve been a lawyer, that I haven’t read any case or any legislation which used to mention 12 and say, oh, that’s no longer the rule. And so that’s why there’s this myth out there that the rules have changed. Is there anything in your experience that something used to mention 12? Where does this number come from?
Heather McKinnon: I think it really does come from the transition from primary school to high school. It’s all got mixed up. But because parents are used to the transition, they have picked up that kids who are entering high school are dealt with differently than kids in primary school. I do honestly believe that’s where it’s come from, but we have to water it down all the time. And some of the worst times for kids are that year seven, year eight in their own development. And if they’re loaded up with decision making as well. Eek! It’s really bad. Yeah.
Benjamin Bryant: And Kate, from a developmental perspective, why is focusing on a single age misleading when it comes to children’s wishes?
Kate Gray: Mm, I just wanted to say as well, there’s so many opportunities lost as well. I recently had a case where the child was, I believe, 13, 14. I’d done the first assessment and I was coming to do the second assessment, and the court had made orders for the child to be able to choose their time arrangements in that time, that period of a year that had become entrenched, and that had meant that the child had rejected the father entirely during that process, without any risk concerns. And it just meant that that opportunity to strengthen, rebuild that relationship was lost because it was the time of making final orders. So I think age is but a number, as you said. And from a developmental perspective, as children develop at such different rates, as you also mentioned, in so many different areas still at that age, even if neurotypical, developing at the sort of age that you might predict, there are still some sort of areas. They’re still developing their brain. There are so many areas that they don’t understand, and that includes long term consequences. They only just developing these skills. I think there’s a chance you’re going to miss out on helping them to develop healthy relationships, just for the sake of autonomy in one area. You can give a child autonomy in a lot of other areas. Some of these decisions are a huge burden for the children as well. I think it’s really important to understand that they are still, at that age, vulnerable to loyalty conflicts and that their decision making may be emotionally driven or may be driven by a small part of the picture because they don’t understand the complexity. So I think it’s really important not to look at the age, but to look at the child’s individual circumstances, their own development, their own surrounding the influences. So I think that’s crucial because it can be really harmful if you hand over the adult decision-making when a child is too immature, doesn’t have the skills to process things, and the long-term consequences can be immense.
Benjamin Bryant: Yeah. Heather and I, I think when we when we’re reality testing some clients, they don’t want to spend time with the other parents. So there’s a real concern. We have to address that. And they’ve expressed that wish. And the next question is, well, what if they say they don’t want to go to school tomorrow? do you just say, well, that’s okay. But no you don’t. You push back. So it’s really helping them explore all the things that go into it.
Benjamin Bryant: Kate, you mentioned that you see situations where children are influenced with parents putting pressure on them, sometimes intentionally or perhaps not. How does that usually show up with the children you see?
Kate Gray: Look, it can show up in a number of ways. It’s important to remember that the children themselves, in this context, are really vulnerable to influence as well. They have mostly lost their sense of stability, safety, security, and even identity because the family has fallen apart and they’re trying to work out how to make sense of that. Then you’ve got parents that have often fallen apart, and they’ve been the people they can go to for that strength and support and security. And they’re not secure people at that time. And so it’s both the fact that the parents are struggling, they are in dispute, and you’ve got these vulnerable children. But unfortunately, this sort of pressure and influence that they can expose the children to can be really damaging. And the children, they may align with one of the parents. And while that’s appropriate when there are safety concerns or risk concerns, that often doesn’t reflect the relationships that can be really problematic. Or as I sort of mentioned before, children can get triangulated in the dispute between the parents, so they may be exposed to or used within the dispute, which can be incredibly damaging. Loyalty conflicts can be created. So that’s where child feels that they have to choose between the parents, or they’re being disloyal to one parent, or they must hide their emotions towards one parent because they’re concerned about how it will affect one parent.
Kate Gray: Children are already struggling with their parents’ separation. And to be given that is an enormous burden. Also they can sort of develop what we sort of call entrenched dichotomous emotional processing or splitting, where they can sort of see one parent as all good and one parent is all bad. And that, of course, is incredibly damaging. And all these things affect their wishes or their expressed wishes, not necessarily their true wishes. They can also develop an enmeshed relationship with one parent, where the boundaries with that parent are blurred, and they may adopt the views and emotions of that parent or feel responsible for them. And if that parent is feeling very negatively towards the other parent, that can be very damaging and can sort of move towards aligning with that parent, of course. And then there’s also alienation where complete rejection sort of happens, so it can be incredibly damaging. And I think sometimes parents are so caught up in the dispute that they don’t realise the impact of their behaviours or the emotions they display, or what they expose the children to.
Benjamin Bryant: Thank you. Kate, I think setting out those examples very clearly is great for our listeners, and I know Heather and I are sitting here thinking about all the families that we’ve helped over the years going tick, tick, tick, tick. So I think it’s a very useful summary. Thank you.
Benjamin Bryant: Heather. From a legal perspective, how are children’s wishes treated in family law? And do the children ever get to decide where they live?
Heather McKinnon: It’s really a system that’s very reliant on Kate and her profession. If parents get into a stalemate and can’t work it through, we need social scientists who can interpret what those wishes have behind them. And that’s why we have the system that we have. Certainly, as children get to the upper end of high school, then subject to neurodiversity, their maturity or whatever’s happening, they will have a lot of self-determination. But I think what we also see then is the parents who can’t acknowledge the child’s maturing. And so it horrifies me that we have kids coming in year ten who we’re getting ready to go to uni. They do work experience with us. They have adult conversations. They’re carrying two part-time jobs. They’re doing extracurricular activities, managing their life. They’re talking to you and I. We’re going to Monash or we’re going to Sydney Uni, and then we find out the parents are treating them as if they’re five-year-olds. And it’s really interesting how you get arrested development. Parents seem to sort of stop in the moment in time. The kids were the age they were when they separated, and they don’t actually acknowledge the maturing of the child, because the conflict’s dominated everything. we have these young people in the office, and we see how they could make decisions about flying a plane around the world or, you know, doing something like that. And the parents think they’re still incapable of even working out what they have for lunch. And what Kate said, they hide it from the parents. It freaks us out.
Benjamin Bryant: That’s right. And that’s.
Heather McKinnon: Yeah.
Kate Gray: Do you think that’s more about the parents’ needs that they’re struggling to let go and adapt with their children’s changing needs.
Heather McKinnon: Yeah. That’s one of the perspectives over the years I’ve seen. And I think when we say, when can they decide, that’s why we need people like you, because the parents often don’t have a very good sense of where their child’s maturity is at, in my experience.
Benjamin Bryant: That’s right. And also, we’re not qualified to determine whether this kid is one of the ones that, needs the self-determination, needs to stand up and say something, or whether they’re the ones that need to be protected from the conflict and not make the decision. So that’s why we rely on the social science. And, of course, for the courts to make the assessment as to best interests.
Benjamin Bryant: Heather, just quickly, what happens if a child’s expressed view to you, perhaps as an independent children’s lawyer, conflicts with what you think is in their best interests? What happens in that circumstance? What would a court do?
Heather McKinnon: Well, I’m from the old school where I don’t believe lawyers should be asking children those things. I think that’s Kate’s job. I prefer to have conversations with children that are fairly light on and explain to them that someone like Kate’s going to have a chat to them. It’s an old radical view. It’s not the view currently, but in a case, if I’ve got someone of Kate’s level of competency, I will be really influenced heavily by her report because she has the skills, the training, the experience to navigate this complex world. But if, for example, a child’s very aligned. So Kate was explaining that a child can just totally reject a parent, and we know that that parent has stuff to offer the child. So at the end of a trial, after a judge has listened to Kate or one of her colleagues, the judge decides, we’re going to try reunification. What I tend to do is work out who is outside the family, but a supportive person for the child, and explain the judge’s decisions. So it might be a school counsellor or a favoured teacher, I’ve found that’s very useful. A lot of lawyers wouldn’t go there, but in country regional Australia, sometimes those people are really safety zones for kids during conflict. But I also find out if there’s a mental health team on board, because often these kids have had to have support. So it’s a co-explanation. This is why the judge has done this, with someone who can help with the outfall. Yeah.
Benjamin Bryant: In terms, I guess, of the weight that a court would give a child’s views or wishes. You know, obviously it depends on the age stage, and you know, development and all different things that Kate’s reports go to. But generally speaking, obviously the older the child, more self-autonomous is getting more towards more weight being given. And we talk about, good luck to a judge telling a 16-year-old what to do because they’re just going to jump on the bus or catch an Uber and do whatever they want anyway. But I thought for the listeners, I’m going to mention the case Bondelmonte and Bondelmonte. We’ll put it into the show notes so they can access it. That is where absolutely the judge went against the children’s express wishes to move to America to be with their father, and the children were quite old. I forget their ages, but about 15 or something like that. So it’s a great case to remind everyone the court does have the power to do it. But again, we rely on social science quite a lot as to how much weight to give children’s views.
Benjamin Bryant: And Kate, from a psychological standpoint, what helps children feel safe to express their thoughts without feeling like they’re choosing a side or hurting a parent.
Kate Gray: It’s important that they’re given a sense of empowerment as well, that their views really matter without the fear of consequence for those views. And I think that’s the real problem with parents. They really need to remain, emotionally neutral and just be safe listeners. I understand that’s very challenging when the content is so emotionally charged, but it is so important for the children that they do not display distress, disappointment or praise. So there’s a big problem sometimes when a child aligns with their views that may be negative about the other parent and they go, oh thank you. That’s good. Or they positively reinforce something that is incredibly harmful. And that’s where alignment sort of starts. So they shouldn’t question the children about their time with the other parent, and they shouldn’t ask about what they’ve discussed with professionals. It’s really important that they show that they’re neutral as to whatever the child’s wishes may be. But it is really important as well, obviously I’m biased, that they are able to speak to somebody independent to express these wishes for the very reason that it is emotionally charged, and there is a risk that they will be influenced by the parent’s reaction.
Benjamin Bryant: There are a lot of examples I can think of, that I’ve been involved in, where the parents are actually asking leading questions, to the point where the children are just answering yes or no, and then that somehow that forms their views So parents have to be very careful with the conversations that they have. They need to listen.
Kate Gray: It is interesting doing these reports, because I do ask a number of questions so that I can sort of separate influence from true wishes. And it’s sometimes very obvious, especially with younger children, that will just adopt whatever the last thing that they were told. So I’ll actually ask things like, what were you told by the other parent about meeting with me? And I’ll go through to try and empower them and tell them about how important their voice is. And I use lots of methods that make it so that it doesn’t feel like they’re being quizzed. Sometimes it’s a non-verbal technique to find out what their wishes are, which sort of crosses ages of development and also neurodivergence and things like that. Obviously, I’m trained to do this, whereas parents are so emotionally invested, they’re not best placed to sort of find out their children’s wishes.
Benjamin Bryant: Or I’m going to wrap up the show with one question. It’s going to be a question to each of you. And we’ll start with you, Kate. If there’s one message you’d want parents to take away about children’s wishes during separation, what would it be?
Kate Gray: Listen to and validate your children’s feelings while remaining emotionally neutral and not placing them in the middle of adult issues or the dispute. Keep decisions focused on their safety, stability, and on protecting their relationships with both parents and when the children need support to express their wishes, reach out to a psychologist like me.
Benjamin Bryant: And Heather, your one message.
Heather McKinnon: Well, you can see why I love Kate, because my answer to this was, if you’re putting your children into counselling so that someone can talk to them about their wishes, go and get therapy yourself as well. I can’t emphasise enough. Don’t treat the child unless you’re getting treatment yourself. So you get insight. Like that’s my big message.
Kate Gray: I think that’s excellent. And parents often say that they, um, I think they see it as a vulnerability, but it’s an absolute strength. This is one of the most stressful things you’ll ever go through. And we all need help.
Benjamin Bryant: Perfect. Well, thank you so much, Kate.
Kate Gray: Thank you.
Benjamin Bryant: And thank you, Heather.
Heather McKinnon: Pleasure.
And that brings us to the end of our episode on children’s wishes.
A sincere thank you to Kate Gray from Family Focus Psychology for sharing her insight into how children form and express their wishes, and for helping us understand the many influences children are navigating during separation. And thank you, as always, to Heather McKinnon for explaining how children’s wishes are approached in family law, with a clear focus on protecting children’s best interests.
If today’s conversation has eased some of your concerns — or helped you see this issue in a new light — that’s exactly why we created this podcast.
Remember, children don’t need to make adult decisions. What they need is safety, support, and the freedom to be children while the adults around them do the hard work.
This episode is part of our growing library of conversations designed to help people feel more informed and less overwhelmed during separation.
You can find all episodes of The Family Matters Show at bryantmckinnon.com.au, or by searching for The Family Matters Show wherever you get your podcasts.
Until next time — thanks for listening.