Despite what popular culture and American soap dramas have told us, there is no such thing as “parental rights” in Australia. It is children who have a right to have a meaningful relationship with both parents and to have their voices heard.
However, a child’s wishes, and views are just one factor amongst many for a Family Court to consider. The weight given to a child’s wishes and views will depend on the child’s age and level of maturity.
AT WHAT AGE CAN A CHILD DECIDE WHICH PARENT TO LIVE WITH?
There is no magical age for when a child can decide which parent to live with, but it is safe to say that the views of a 13 year old will likely be given more weight than that of a 5 year old.
Most parents would agree that even when a child is old enough to express their views, they may not always know what is best for themselves.
Children make questionable decisions on a daily basis: refusing to brush their teeth, eating too much junk food, and skipping school are just some of the less harmful. There are other types of decisions kids and teenagers make that have more destructive effect. This is why parents get to make the ultimate decisions about their children’s welfare.
HOW THE COURTS WILL MAKE A DECISION ON YOUR BEHALF
When it comes to choosing a parent to live with, Courts will be asked to make a decision if the parents themselves can’t agree. When making Court Orders, a Judge will prioritise the child’s best interests (not the parent’s best interests) and will take into account a range of considerations, including the child’s wishes and views.
Whilst the Court has the power to make Orders in relation to children of any age before they turn 18 years, Judges are usually more reluctant to impose any specific care arrangements for teenagers. This is primarily for practical reasons – it is logistically much harder to strap a teenager to a car seat and drive them to the other parent’s house than it is with a younger child!
WHAT IF YOUR CHILD IS TELLING BOTH PARENTS DIFFERENT THINGS?
It is common for children to tell a parent what he or she thinks that parent wants to hear in order to please them. Children may also be worried about hurting a parent’s feelings. While some children feel comfortable expressing their preferences, others can experience anxiety over having to choose between their parents, especially if there is a high level of conflict between them.
To avoid placing pressure on a child to express a choice, parents can jointly consult with a child psychologist or counsellor to explore the child’s wishes and views in an appropriate and safe manner.
Another option is to participate in a Child Inclusive Mediation, which is a mediation between the parents that involves a child expert meeting with the child and providing useful feedback to the parents. Both options enable the child’s voice to be heard but without directly involving the child.
When can my child decide which parent to live with? (CONT.)
WHAT IF THE MATTER IS ALREADY BEFORE THE COURT?
If a parenting matter is already before the Court, a Family Report can be prepared to assist the Judge in deciding what care arrangements are in the child’s best interests.
The Family Report writer, who is usually a child psychologist or social worker, interviews and observes the interactions between the child and each parent. Report writers can make recommendations about a child’s wishes and views, the weight that should be attached to them, and whether a child has been influenced by a family member.
Another way for children’s wishes to be heard in Court is through an Independent Children’s Lawyer (ICL). The ICL’s role is to represent the best interests of the child, however, they are not obligated to make recommendations that are consistent with the child’s wishes and views.
WHAT HAPPENS IN THE FUTURE?
Children’s preferences about their favourite colour, best friends, and music tastes amongst other things can change as they get older, as can their preference for who they live with. Care arrangements that once suited a child when they were young may not work when they become an adolescent.
As such, parents can review the arrangements as circumstances change. Maintaining a child-focused approach and having some flexibility with the other parent can help to ensure that your child’s evolving needs are being met.