In Australia, can a child decide which parent to live with? If so, when?

Separation. Divorce. Children.

When a spousal relationship slowly breaks down, and there are children involved, the case becomes much more complicated. A child's future living arrangements must be sorted out, and this usually brings forward a difficult decision, especially when a child has a firm view about which parent he/she wants to live with. 

When can a child decide which parent to live with in Australia? There is no clear-cut answer to this question, and there is no particular age. Determining when a child can decide which parent to live with has many different complexities that go alongside it. 

Is there a legal age for a child to choose which parent to live with?

Many people believe there is a legal age for a child to choose which parent to live with. However, this is not one of the determinants. Instead, there is a range of other factors that the court will assess in deciding the living arrangements for a child. These include:

• The child's maturity levels
• Their understanding of the situation
• Whether their decisions about which parent they want to live with is well informed 
• Whether the child has been influenced by either of the parents, relatives or other family members 

The Family Court's main concern is that children maintain a positive and healthy relationship with both parents, free from physical/psychological harm. When it comes time to take a child's wishes into account, the Family Court will usually observe this decision from a consultant, trained counsellor or therapist who has interviewed with the child. 

The report writer conducts a range of interviews:

• Observing the parents, children and other family members
• Asks questions to discover a child's wishes
• Deduces a child's maturity and level of understanding

This report is prepared and analysed by the Court. It assists them in finalising the decision regarding which parent the child should live within Australia. These issues can become extremely complicated when there are two children involved with differing levels of maturity. In situations like this, the Court may favour the older siblings wishes but disregard the younger ones as they do not hold the same maturity levels. However, in many cases, the court is disinclined to separate siblings who exhibit an attachment to one another. 

Sometimes, the Court will nominate an Independent Children's Lawyer to represent the child’s best interest in the current family law proceeding. Lawyers will gather information from a range of different sources close to the child before going forward with the process and interviewing the child. 

Independent Children's Lawyers usually become involved in cases where:

• There are claims of physical, sexual/psychological abuse 
• There is an ongoing conflict between the parents
• The child feels estranged from one or both parents
• There are cultural or religious differences
• There is a plan to separate siblings into different households or take a child overseas

It is recommended to avoid the cost, time, hassle and difficulties of court proceedings. In any family breakdown, it is better to try and reach a conclusion before going to court. As this situation can become complicated, it is useful to get advice from an experienced legal professional who can provide information on Family Dispute Resolution (FDR) options.

FDR is done through mediation, counselling and other methods. A child's decision on where they want to live can be stressful and time-consuming, especially on top of all the other separation and divorce procedures. Assistance from a family law lawyer will help you clarify your options and reach a solution that is best for your child. It is crucial that the child's wishes are taken into account and that they maintain a healthy and positive relationship with both parents throughout the process. 

The Australian family law system ensures that children are allowed to express their views in proceedings that are concerning them. The higher the level of understanding a child has of the situation, the higher the court places on these views. 

The child's view is usually not the sole determinative factor of where they will live within Australia. There are many other factors in Section 60CC of the Family Law Act that are taken into consideration by the courts. 

The primary considerations, according to the Family Law Act, are: 

1. The benefit to the child of having a meaningful relationship with both of the child's parents; and
2. The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
3. The best interest of the child is of paramount consideration.

If you are having difficulties surrounding when a child decides which parent to live within Australia, it is recommended to reach out to an experienced family lawyer. This decision is no small one and should not be taken lightly. 

Take the time and make sure the outcome is one that is best for the entire family.

At Prominent Lawyers, we can help you through the process, ensuring yourself and your child receives the support and guidance. Our family law team can advise you on your rights and responsibilities, helping you reach an agreement. 

Need help? 

Contact our team on 1800 77 66 46!