When can a child choose what parent they live with? – Sacha Mastras

When can a child choose what parent they live with? – Sacha Mastras

A common question we get asked is, “when can my child decide for themselves” who they live with?  Parents are often surprised when our response is “not until they’re 18”, and strictly speaking this is correct in most circumstances.

Where a child is under 18, there are a number of considerations that the Court will take into account when determining what arrangements are in the child’s best interest – the child’s views being just one of them. The law considers the child’s emotional and intellectual maturity and age when considering how much weight should be placed on their views or wishes. Because of this, the views expressed by a child in their mid-to-late teens will often be given significantly more weight compared to those of a child who is aged 6 or 7 years.

In Goodwin & Glass [2017] the Judge considered and agreed with the recommendations of a Family Report Writer who, after interviewing a 16 year old child, said that the child “‘shared his views in a mature, reasoned, articulate and self-assured manner. [The child] was assessed to be a truthful person who was of an age where his views and opinions were assessed to be independently formed and uninfluenced by the preferences of others.”

In comparison, Kallas & Kallas [2015] FCCA 3242 involved a child who was 6 years old and the Judge observed that “although the child has expressed views about her father, there are a number of points to be made about them. First, [the child] is only six years old and any views she expresses mush be approached with a caution appropriate to her youthfulness”.

If you are unable to agree on parenting arrangements with the other parent, the Court’s primary considerations are the benefit to the child of having a meaningful relationship with both parents, so long as there is no risk of harm. The law also says that the Court must consider additional considerations including the likely effect of the child of any separation from either of his or her parents.

In circumstances where a child has been given the prerogative to choose, the Court may find that a parent hasn’t taken the necessary steps to ‘be the parent’ by encouraging the relationship between the child and the other parent. In the recent decision of Weller & Weller [2017] FCCA 1790, the Judge commented that “[the children] have been empowered through the litigation process … to believe that they are the ones who get to decide whether they spend time with the father. This is a parental decision, and if the parents cannot come to an agreement and they each apply to the Court for orders, then it is a judicial decision”.

The responsibility of working out who a child lives with and how frequently they spend time with the other parent rests with the parents, not with the child. Saying that “the child said he/she didn’t want to go” is often not going to be considered a valid reason for not encouraging or facilitating the child spending time with the other parent. Importantly, if the child’s reluctance or refusal is happening while you have Parenting Orders in place, you may risk a Contravention Application being made against you for failing to comply with Court Orders.

If your child is reluctant or refusing to spend time with the other parent, it’s best to sit down with an experienced family lawyer to discuss your matter in detail.