When can a child choose which parent they want to live with, in Australia?
There is no simple, straight answer that anyone can give you. If someone has given you a flat age, they either do not understand the complexity of this issue in Australian family law or have decided not to share those complexities with you.
When can a child legally decide which parent to live with?
This question potentially comes with the most ‘lawyer’ answer you will receive: it depends. The age at which your child can decide who they live with, who they spend time with and how much time they spend with that parent (if any) is dependent on a number of factors.
Best Interests of the Child
The primary principle guiding child custody decisions in Australia is the best interests of the child. When determining custody, the court considers various factors, including:
- The benefit to the child of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm.
- The child’s views, depending on their age and maturity.
- The child’s relationship with each parent and other significant people, such as siblings and grandparents.
- The capacity of each parent to provide for the child’s needs.
- Any family violence involving the child or a family member.
- Practical considerations, such as parental capacity to facilitate time spent with the other parent.
Types of Custody Arrangements
Custody arrangements in Australia can vary widely, but they generally fall into two categories:
Sole Parental Responsibility:
One parent has the authority to make major decisions about the child’s life, including education, health care, and religious upbringing.
Shared Parental Responsibility:
Both parents have equal shared parental responsibility, meaning they share the decision-making responsibilities, requiring them to collaborate on significant issues affecting the child’s welfare.
The court may also determine specific living arrangements. This can include equal time with both parents or a more traditional primary residence with one parent and scheduled visitation with the other.
What age can a child decide which parent to live with in Australia?
The age at which your child can decide where they live and how much time they spend with the other parent is subjective, meaning it will vary from child to child. Every child is different, and every child grows and develops at their own pace.
Factors family court will use to determine the weight of the child’s preference:
Consideration of the Child’s Views
Australian family courts take a child’s views into account when determining custody arrangements, but there is no specific age at which a child can choose which parent to live with. Instead, the court assesses the child’s maturity, understanding, and capacity to make reasoned decisions. This approach ensures that the child’s voice is heard and considered, but it is not the sole determining factor in custody decisions.
Factors Influencing the Weight of a Child’s Opinion
Several factors influence how much weight a court gives to a child’s opinion, including:
Age and Maturity:
Older children and teenagers are generally more capable of articulating their preferences and understanding the implications of their choices, and the court is more likely to consider their views in detail.
Reasons for Preference:
The reasons behind a child’s preference are crucial. Courts look for well-thought-out and genuine reasons rather than superficial or influenced preferences. For instance, a child’s desire to live with one parent because of better educational opportunities or emotional support carries more weight than a preference based on lenient household rules.
Emotional and Psychological Well-being:
The court evaluates whether the child’s preference aligns with their emotional and psychological well-being. If the choice is likely to cause harm or distress, the court may not follow it.
Professional Assessments
To gain a comprehensive understanding of the child’s preferences and best interests, the court may rely on reports from independent experts, such as family consultants, psychologists, or social workers. These professionals conduct interviews and assessments to provide insights into the child’s views, family dynamics, and overall well-being.
Case-by-Case Basis
Ultimately, child custody decisions are made on a case-by-case basis, with each family’s unique circumstances taken into account. While a child’s preference is important, it is one of many factors that influence the final decision.
Can a child choose not to visit a parent?
The age of the child is not the sole determinant in these matters. For instance, there have been cases where the court has given limited weight to the wishes of a 17-year-old. This can occur if the court finds that the reasons behind the child’s decision are not balanced, mature, or appropriate. For example, if the child’s decision is influenced by undue pressure from one parent or if it is based on trivial reasons rather than substantial ones, the court may decide that the child’s preference should not significantly influence the visitation arrangement.
Conversely, the court might give considerable weight to the wishes of a younger child, such as a 13 or 14-year-old, if their reasons for not wanting to visit a parent are well thought out and mature. If a younger child’s decision is based on legitimate concerns—such as their comfort, emotional well-being, or safety—the court may consider their wishes more seriously.
Other Considerations
Best Interests of the Child:
The paramount consideration is always what will best serve the child’s welfare and well-being. This includes their emotional, physical, and psychological needs.
Parental Influence:
The court will examine whether a child’s preference is being unduly influenced by one parent. If it is found that a parent is manipulating the child’s opinion to alienate them from the other parent, this will be taken into account.
Child’s Environment:
Factors such as the child’s adjustment to their home, school, and community, as well as their relationship with each parent, are crucial.
Reason for the Child’s Preference:
The specific reasons behind a child’s preference will be scrutinised. Concerns about safety, the quality of the relationship with the parent, and the child’s emotional and physical comfort are taken seriously.
Professional Evaluations:
Courts often rely on the input of child psychologists, social workers, or guardians ad litem to assess the child’s situation and preferences. These professionals can provide an unbiased perspective on whether the child’s wishes are in their best interest.
While a child’s age can be a factor in determining whether their wishes regarding visitation are considered, it is not the decisive factor. The family court will have its primary focus on the child’s best interests, taking into account the maturity and reasoning behind the child’s decision, along with a holistic view of their well-being. Each case is unique and will be judged on its individual merits, with the child’s welfare as the guiding principle. A parent also has a right to see their child.
When can a child choose which parent they want to live with?
The test the Court applies when considering the opinions and wishes of your child is two fold:
| Two fold steps | Factors considered for when a child can choose which parent to live with |
|---|---|
| 1. age of the child | There is no set age in Australia and it is a factor to be considered. Children up to the age of 17 have had their wishes ignored. |
| 2. child’s level of maturity | In this regard the Court is assisted by a family consultant (generally a qualified social worker or psychologist) who will meet with your child and, subsequently, provide a report to the court as to your child’s understanding of the current parenting situation, based on their assessed maturity level and capacity to make decisions. |
However the answer to the two-fold test is not a simple “yes” or “no” and is not a question of whether your child’s wishes will be considered or not. Rather, the question for determination is: what weight will the court give to your child’s wishes? The court will apply a gradient to your child’s wishes and preferences and, depending on their age and level of maturity, your child’s decision may have a significant impact on the outcome of your legal proceedings, or it may be balanced against other factors outlined in the Family Law Act which the Court must give consideration to (including the importance of maintaining a significant relationship with both parents, and the need to protect the child from child abuse and family violence).
If your child is expressing a wish for different parenting arrangements, it is best to discuss your matter with a solicitor to receive legal advice specific to your circumstances.
A family dispute resolution practitioner can help you with parenting orders, put into place a parenting plan for separated parents to ensure the child’s living arrangements, child’s education and parenting time to develop meaningful relationships is all in order so that both the mother and father can face the future knowing major long term decisions have been prepared for.
