Children and family law
A child in Australia has the right to form and maintain a meaningful relationship with both of their parents. At the same time, every child has the right to be protected from harm.
When these two rights come into conflict, it is more important that the child is protected from harm even if that limits their relationship with a parent. In the end, if there is a threat of harm from one parent, it may be in the child’s best interests to have less contact with that parent. However, this is not a decision that a child can make independently.
This article looks at how decisions are made about contact between children and parents, and specifies the age at which a child can refuse to see a parent in Australia.
Parents will sometimes say that they have parental “rights”, or that they have a legal “right” to spend time with their child. It is important to understand that this is not the case under Australian law.
Under the Family Law Act 1975 (Cth), parenting is a responsibility, not a right. A parent has certain powers and authorities over their child, but only to serve the best interests of the child and not the interests of the parent. In addition, a parent also has duties and responsibilities to their child. These four elements – powers, authorities, duties and responsibilities – make up what is legally referred to as “parental responsibility”.
Equal shared parental responsibility
In Australia, a mother does not automatically have more parental responsibility than a father. When a baby is born, each parent automatically has equal and shared parental responsibility for that child. This means that each parent is 100% responsible as an individual for the child’s care, welfare and development. This continues until the child is eighteen unless a Court orders otherwise.
Obviously, two people with 100% parental responsibility cannot exercise that responsibility without regular consultation with the other parent. This is especially true for any decisions that can have long-term impact on the child. For instance, one parent cannot unilaterally decide to remove a child from a certain school, raise a child in a certain religion, or permit a child to receive certain medical treatment.
It is important to understand that equal and shared parental responsibility does not mean equal time spent with each parent. One parent may see the child in person only once a week, but that parent still has 100% parental responsibility for that child and must agree to all important decisions. This is the heart of shared parenting.
Australian law does not require that a child spends equal amounts of time with each parent. The Federal Circuit and Family Court of Australia will make parenting orders based on whether it is reasonably practicable and in the child’s best interests to spend equal time with each parent.
If it is not reasonable or best for the child to spend equal time with each parent, then the Court will consider whether the child should live with one parent and spend “substantial and significant” time with the other parent.
The Court will only order less than substantial and significant time with one parent if it is in the child’s best interests. It is very rare for the Court to order that the child have no contact with one of their parents. Even in cases involving family violence, the Court will likely order that the child should have some contact with the parent. In that scenario, in person visits may need to be supervised by a social worker or other trusted adult. If visits are not in the child’s best interest, the Court may still order contact via letter or telephone.
The considerations for deciding a parenting arrangement
From a legal perspective, a child under the age of eighteen does not have a deciding vote in their parenting arrangements. Either their parents, or the Courts, will decide what is in the child’s best interests.
Parents can agree privately to any parenting arrangements that are best for their child. Alternatively, the Courts can make the decision if the parents cannot agree.
A private parenting arrangement can take any form that makes sense to both parties. These arrangements often change as the child matures or the parents’ circumstances change. For instance, a parenting arrangement may state that an infant spends almost all of the time with the mother, with the other parent visiting. As a toddler, the child may begin to spend longer periods away from the mother, and eventually progress to spending weekends, or alternate weeks, with the other parent once they start school. Ideally, parents will be able to make these decisions cooperatively with a sole focus on the child’s interests at each life stage.
Best interests of the child
When parents cannot make these decisions privately, the Courts will step in. Under section 60CC of the Family Law Act, the Court must consider a number of factors when determining a parenting arrangement for a child. The two primary considerations are that the child have a meaningful relationship with both parents, and that the child is protected from physical or psychological harm.
The Court considers numerous other factors when making a decision on parenting arrangements, such as:
- the child’s relationship with each parent and other people including grandparents;
- the likely effect on the child of the new parenting arrangement;
- the practical difficulty of the child spending time/communicating with both parents;
- the capacity of each parent to meet the needs of the child; and
- the child’s wishes.
How much weight the Court places on the child’s wishes depends upon the age and level of maturity of the child. The Court also considers whether the child has an informed understanding of the situation or whether one parent has unduly influenced the child. In reality, an older child is likely to have a definite opinion on where they spend their time, but legally, they cannot unilaterally decide to no longer spend time with one parent.
What age can a child legally decide which parent to live with?
There is no specific age when a child is considered old enough to have a say in their living arrangements. The Court may give significant weight to the wishes of an intelligent ten year old with a clear preference based on sound reasoning, over the wishes of a fourteen year old who wants to live with a more permissive parent. However, even if a child expresses a preference not to see one parent, the Court is unlikely to make such an order unless there is a risk of harm to the child.
Who assesses the child’s maturity and level of understanding?
Ultimately, it is up to the Court to decide the child’s maturity and level of understanding. However, the Court will usually rely on advice from experts when making a decision. For instance, the Court may order that a trained counsellor, therapist or psychologist produce a family report.
The author of a family report typically interviews all family members (including siblings, grandparents, step-parents and step-siblings), to understand the dynamics of the family and the child’s needs and wishes. The report writer then provides recommendations to the Court on what parenting arrangements are in the best interests of the child. These recommendations will not always reflect the child’s wishes. When the report writer disagrees with the child’s wishes, they will usually provide a full explanation for their recommendations in their report.
The Court may appoint an Independent Children’s Lawyer to represent the child’s interests during the proceeding. This person can express the child’s wishes to the Court. Although an Independent Children’s Lawyer is not an expert in a child’s psychology, they are well positioned to provide the Court with an unbiased report on the child’s views.
The Court may also rely on other evidence, such as affidavits from parents and teachers, when assessing the child’s maturity. These affidavits can provide insight into how the parenting arrangements will impact on the child.
Can a child choose not to visit a parent?
As outlined above, a child under eighteen cannot legally choose to live with one parent over another. A minor child also cannot choose to ignore the visitation provisions in a private or court-ordered parenting arrangement. However, in reality it can be difficult to enforce these arrangements.
A parent should do everything that they can to encourage and foster a positive relationship with their child’s other parent. If the child does not cooperate with visits, the parents should work together to develop solutions. This often involves identifying the reasons for the child’s concerns. For instance, if the child feels uncomfortable around step-parents or step-siblings, both parents should work to help the child to adjust.
When one parent tries to turn their child against their other parent, this is known as parental alienation. The Courts tend to take a highly negative view of evidence of parental alienation, so it is important to be able to show that every effort is being made to foster a positive relationship with both parents.
Your child’s wellbeing
If your child is hesitant to visit their other parent, it is important that you identify the cause of their discomfort. The child may have unfounded or easily allayed concerns, but there could be more serious issues that must be addressed. If you suspect that your child is at risk of harm in the other parent’s home, you have a responsibility to protect your child.
If you are afraid that harm will come to your child, then you should prevent them from visiting with their other parent. While keeping your child away from their parent is a breach of the parenting order, you are unlikely to face punishment (such as court costs) unless there are repeated breaches. You should also urgently seek legal assistance. Your solicitor can help you apply for a variation of the parenting order and possibly also a family violence order.
What is the view of the court?
There are numerous cases where the Court will take into account the wishes of a child when it comes to their living arrangements. However, the Court will apply a forensic approach: that is, they will examine the factors that impacted on the wishes of the child, and then independently determine what is in the child’s best interests.
The High Court considered the importance of the child’s wishes in parenting orders in the case of Bondelmonte v Bondelmonte . In this case, a father brought his teenage boys to his home in New York for a holiday but did not return the children to Australia. The father argued that the children preferred to live with him.
The children were old enough (at fourteen and sixteen) for the Court to give their wishes to stay with their father considerable weight. However, the Court found that the children were unfairly influenced by their father, and therefore their wishes were overruled. The father was required to return the children to Australia and the Court ordered a family report to determine what parenting orders should be made.
Financial responsibility for children
Financial responsibility for a child is separate to parental responsibility. Each parent is financially responsible for their child, regardless of whether or not they have contact with the child.
Unified Lawyers can help
Contact Unified Lawyers on 1800 431 519 for help if you are negotiating a private parenting agreement or need representation in family court proceedings. Our family lawyers are specialists who can assist you with any family law matter.