Children’s views in the context of parenting arrangements

When can a child decide where to live According to the Family Law Act, separated parents each have parental responsibility for their child until their child is 18 years old unless Court Orders say otherwise.

However, a separation or divorce, can make agreeing on parenting arrangements difficult.

If you and your former partner do not agree on future parenting arrangements, then this can be determined in a Parenting Order or guided by a Parenting Plan.

Orders

Parenting Orders are essentially a set of Orders made by the Court to determine:

  • How much time will be spent with each parent and other relatives or caregivers;
  • The allocation of parental responsibility;
  • How the child will communicate with the parent they are not residing with;
  • Any other aspect of the care, welfare or development of the child.

But when can a child decide on whom they wish to live with? 

Is there a minimum age required, or can a child make this request at any age?

When determining parenting arrangements, a number of factors will be considered but ultimately, the arrangement must be in the ‘best interest of the child’.

The relevant factors considered by the Court, among other things, include the following:

  • The benefit to the child of having a meaningful relationship with both parents;
  • The need to protect the child from physical, psychological or other harm; and,
  • To a lesser extent, depending on the age of the child and the circumstances of the case, the views expressed by the child.

In Australia, there is no specific age attached to a child deciding where, and with whom, they wish to live. Rather, whether a Court takes into account the child’s views and wishes depends on the child’s maturity, insight and understanding of the situation.

As the child gets older, the Court will usually place greater weight on the wishes of the child, provided their level of maturity increases over time and, again, depending on other factors relevant to the case. However, that does not mean the Court will not have regard to the wishes of younger children.

So, how does it work?

If a child seeks to give their opinion as to whom they wish to live with, this will commonly be done through a Family Consultant, expert psychologist or expert psychiatrist (also known as, the ‘Expert’).

The Expert will observe, and consult with, all members of the household, including other children, partners, relatives and/or caretakers living with the child. The Expert will then prepare a Report which will be tendered into evidence (meaning it will be viewed by the Judge) and can be relied upon by the parties to the proceedings.

The Expert’s report will make recommendations about the parenting orders that the Expert considers are in the child’s best interest. That is not to say the Report’s recommendations will be accepted, as other factors will also be assessed in determining what will be in the child’s best interest. The Expert’s recommendations are normally tested in cross-examination at the final hearing.

Testing a child’s wishes should be left to the Expert and the Independent Children’s Lawyer as parental involvement in these discussions can be damaging and hurtful for children as they find themselves torn between their parents and enmeshed in their conflict.

There are many aspects of a parenting matter that a parent should be advised upon before embarking on negotiations or Court proceedings. Seeking legal advice can help you navigate through this process more easily.

Contact us to enquire about a free initial conversation with one of our experienced family lawyers. 

Nora Michael is an associate director in our Sydney Office.

By |2018-06-14T16:53:06+00:00June 14th, 2018|

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