Key Takeaways:
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- A child’s wishes can have an influence on their living arrangements after their parent separation, however, many other factors will also have an impact on the final outcome.
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- The influence of the child’s wishes will be impacted by their understanding of the situation, relationships with their parents and their overall maturity.
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- According to the Family Law Act 1975, all decisions relating to a child must be made with the child’s best interests as the paramount consideration.
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- A child’s wishes may be heard in legal proceedings, usually through a third party such as a family consultant, therapist, or Independent Children’s Lawyer.
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- Parents have a variety of options to determine care arrangements for their children, including making private agreements, engaging in mediation, or court proceedings.
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- It’s common for parents to wonder “can a child choose where to live” or “what age can a child decide where to live”.
Whether you’re ending a marriage or a de facto relationship, breaking up is rarely ever easy. If you have children, it can add another level of complexity.
The end of a relationship usually involves sorting out important matters like new living arrangements and how you will divide your assets. When you have children, you also need to determine where they will live and how you will parent them moving forward.
In some situations, co-parenting after separation and the care of the children comes easily, while for others, this is a very difficult and emotional process that takes time and requires help from outside resources.
You might be wondering when can a child choose where to live or if they have a say at all? In this article, we’re going to talk about the child’s wishes when it comes to living arrangements after their parents have separated.
Child custody arrangements can be complex, so if you’re feeling overwhelmed, you’re not alone.
Can a child choose where to live?
There is no straightforward yes or no answer to this question, rather the child’s opinion could have an impact on the decision of where they will live.
Many people mistakenly believe that there is a certain age when a child can decide which parent they will live with, but there is no set age. However, the Court will be considerate of the age of the child at the time they are expressing their wishes.
Deciding living arrangements for a child is based on a wide range of factors, one of which is the child’s wishes and thoughts.
So, the child does have a say in their living arrangements?
If the Federal Circuit and Family Court of Australia is making a decision about the child’s living arrangements, the child’s opinion is usually taken into consideration, however the influence the child’s thoughts will have on the outcome is dependent on a few different factors, including:
- The child’s maturity levels – rather than focusing on a specific age for a child’s opinion to matter, the court will focus more on the maturity of the child. In most cases, maturity comes with age and the Court will identify greater maturity in children above the age of 12.
- The child’s understanding of the situation – a child’s understanding of the situation will be somewhat dependent on their maturity levels and it plays a significant role in being able to develop a sound opinion.
- The influence of other people in forming their thoughts – a child’s parents, family members and/or other relatives could potentially influence a child’s opinion in these matters, which would affect what the child reports is their wishes.
What factors determine where a child will live after their parent’s separation?
A number of different factors will play a role in determining the custody and living arrangements of the child. The child’s opinion is one, and the parent’s capacity to look after the child is another.
While they are both very important, in the Australian family law system, when a matter impacts a child in any way, the decision must be made based on what is in the best interests of the child – this is considered to be the most paramount determinant.
What does the best interests of the child mean?
While most parents believe that their actions are always in the best interests of the child, in this context, the best interests of a child is a fundamental principle of family law in Australia. Parents and the Court should make decisions regarding children based on the considerations of this principle.
There are two key primary considerations of the child’s best interest principle, which are, according to Section 60CC of the Family Law Act 1975, are:
- “the benefit to the child of having a meaningful relationship with both of the child’s parents; and
- the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
While both of these principles are extremely important, more weight will be given to the second consideration.
There are also a number of additional considerations that are included in the child’s best interests principles, which are:
- views expressed by the child as well as the child’s maturity and understanding of the situation;
- the relationship the child has with each parent and other important persons, such as grandparents and relatives;
- the willingness of each parent to participate in making decisions for the child’s long term future, as well as to spend time with the child and communicate with them;
- the impact or effect of any changes in the child’s current circumstances, like their living arrangements and who they get to spend time with;
- the ability of each of the child’s parents and other persons to provide for the needs of the child, including their emotional and intellectual needs;
- the presence of family violence or family violence orders applying to the child or a member of their family.
These are only some of the considerations that may be taken into account when making decisions regarding a child.
How is the child’s opinion expressed in family law matters?
Taking a child’s opinion into consideration can happen in a number of ways, depending on how the living and care arrangements are being worked out.
If your matter is in court, this information is likely to be provided by a third party rather than from the child directly. This is because the aim is to remove children from having to experience any court processes. The third party is usually a family consultant or an Independent Children’s Lawyer.
Family consultant
The family consultant is usually a trained counsellor, therapist or consultant who observe and potentially interview the parents and children, and potentially other family members, to learn more about the family situation and the child’s maturity. They will also ask questions with the intention of learning the child’s wishes.
They will then prepare a family report for the court to aid in making the decisions about the parenting arrangements.
Independent children’s lawyer
Also referred to as an ICL, an Independent Children’s Lawyer will advocate on behalf of the child during the proceedings and they will do so based on the information they gather from a variety of sources, such as schools and medical records. The ICL will also interview the child to learn more about their thoughts as well.
Matters outside of court
If you’re trying to take a child’s thoughts into account but your matter is not in court, there are options for you as well. You could consider counselling or therapy for the whole family, including the child/children. This provides them with a safe place to discuss their thoughts and the counsellor or therapist acts a third party who is impartial. Or you could also try mediation or family dispute resolution with the children and a qualified mediator. Their role is to facilitate discussions between all parties and allow everyone to express their thoughts and concerns.
What if the child doesn’t want to have anything to do with one of their parents?
Unless there is a court order in place that states a parent has no access to their child, a child under the age of 18 has the opportunity to spend time with their parent.
The Australian family law system emphasis the child’s right to have a meaningful, healthy and positive relationship with both of their parents, and it’s important to note that this right is the child’s right. As long as it is safe to do so, and as we mentioned above, there is no court order in place to say the other parent cannot have a relationship or access to their child, it’s important for both parents to proactively encourage a relationship between their child and the other parent.
If your child is refusing to see their other parent, it is important to listen to them to understand their reasons for this as there may be a simple solution or a concerning underlying issue that needs to be resolved.
A child may refuse to see their other parent for a wide range of reasons, such as their parent has a new partner that they do not feel comfortable around, perhaps the child is struggling to adjust to their new life after the changes of a separation, or it may be something very concerning, such as the other parent is trying to turn the child against their other parent (parental alienation).
If possible, both parents should work together to find out the cause for the child’s concerns.
How can a child’s living arrangements be sorted out?
The family law system in Australia is flexible when it comes to resolving matters to allow people the opportunity to resolve issues themselves rather than through the court system.
When it comes to working out parenting arrangements and where your child will live, you can do so in a number of different ways:
- Making an agreement with the other parent privately – this agreement can be informal or made formal by applying to the court for consent orders.
- Seeking legal help – you can work with a family lawyer to understand your options and negotiate with your former partner to find the right solution. The arrangements you make in this situation can also be informal or formalised by the court.
- Mediation or family dispute resolution – if you’re unable to come to an agreement together, you will likely need to attend mediation before you can apply to the court to resolve your matter. Mediation and dispute resolution services involve having a third party facilitator to help you discuss the matter and ultimately resolve it. Mediation can be very successful.
- Court proceedings – when all other options have been exhausted, then you can apply to have the court to make orders for you. These orders are final unless significant changes occur and are often less flexible than when you resolve the matter yourself.
It’s important to note that it’s not always safe or possible to resolve matters privately or through mediation, such as when family violence is present. If you’re in a situation where you don’t feel safe or comfortable, we highly recommend seeking legal advice. A family lawyer can help you resolve your matter swiftly and ensure that you’re not put in any danger.
Talk to our experienced family lawyers today
If you’re concerned about your child’s wishes being represented in your family law matter, talk to us today. Our team is well-versed in parenting and custody matters and we take our duty to ensure the child’s best interests are always protected very seriously.
We provide our services Australia wide and we have an experienced family lawyer ready to help you today. Call us on 1300 667 461 or book a free consultation online below.
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