What age can a child choose to live with a parent Australia

Posted at 07:27h in Family Law

It is a sad fact of life that unless there is abuse, the children suffer most after a divorce. No matter what the parents feel about each other, the children they raised together up to this point still love them both.

Children can get a real guilt complex, thinking the divorce was caused by something they did or said. Having to choose which parent to live with only makes things worse, because they will feel guilty about possibly hurting the one they don’t choose.

The thing is, in Western Australia, a child cannot choose which parent to live with, even though they can make their wishes known to parents and possibly, the court.

The fact is, children in Western Australia are not allowed to speak in court at all, but they can make their wishes known to their parents, a lawyer or caregiver or a counsellor.

It is then up to that person to let the court know what they want. That doesn’t mean they will get their wish.

The judge still has to make a decision based on what he or she knows of the case. Judges are well aware that parents can manipulate their children to influence their decision. That is why they are not allowed to make a decision until they are 18 and considered an adult. From about the age of 14 up, the judge may give their wishes more consideration, especially if they are mature for their age and understand what is going on and how it will affect them.

A child who is 16-17 years of age may quite well have their wish granted by the judge, but the judge will always make sure the decision is based on where the child will be the safest and better cared for.

This protects the child from any manipulation or revenge motive either parent may have in trying to ensure the child lives with them. The judge also considers which parent is most capable of the responsibility of raising a child. Once, the mother was granted custody in nearly all cases; today that may not be the case depending on whether drugs or violence is involved.

The final decision may even be made in favour of someone else besides the parents. Depending on the circumstances, it is possible that a foster carer or other family members will be given the responsibility. In all cases the judge takes into consideration many aspects of the situation to ensure the child gets the best deal now and into their future.

At Perth Family Lawyers our solicitors are often asked by clients “at what age can their children decide which parent they wish to live with?”.  There is no clear-cut answer to this question. The legislation, the Family Law Act 1975 (Cth), does not prescribe a particular age which gives children autonomy to make decisions with regards to where they want to live and how much time they want to spend with the other parent.

When the Family Court is asked to determine which parent a child is to live with, the Judicial Officer must consider 16 different factors and take each into account as applicable. Your child’s wishes (or views) are just one of these considerations and generally not the most important one. The weight given to any views expressed by your Child will also be dependent on a particular child’s maturity or level of understanding. The Court is primarily required to consider the benefits of the child having a meaningful relationship with both parents and the need to protect the child from harm.

Sometimes clients provide instructions that they feel the other parent is attempting to ‘bribe’ a child to persuade them to want to live with them by showering them with gifts, or not imposing normal parental boundaries (for example, allowing them privileges the other parent won’t – such as giving them a mobile phone at a young age, or allowing them to have extensive screen time, or a late bedtime).  Our advice is to continue parenting your children as normal.  During a family breakdown, what your children require most is stability and consistency, and the same boundaries to which they are accustomed. 

The court will weigh different factors when deciding the child’s best interest as to their place of residence, such as:

1. The child’s level of maturity;
2. The child’s insight;
3. The child’s understanding of the situation;
4. Whether the child’s wishes are well informed;
5. Whether the child has been influenced by their parents when deciding where to live, etc.

In certain situations, the Court will order an independent assessment be undertaken and provided to the Court in relation to the family and the child.  This can involve either a Family Consultant or a Single Expert Witness being appointed, to meet with your child and the parents, and provide a report to the Family Court as to the child’s understanding of the circumstances (considering the above listed factors) and recommendations.

In some cases, the court will appoint an Independent Children’s Lawyers for the purpose of providing an independent view as to the child’s best interests. What is in a child’s best interests, however, can sometimes be at odds with what their wishes may be.

Our solicitors provide genuine legal advice and Perth Family Lawyers can assist you with deciding what would be the best path for you to choose in the event that you believe that your child is being influenced by the other parent to live with them.

If your child is expressing a wish to vary their living arrangements, we strongly recommend you immediately obtain independent legal advice from one of our experienced family lawyers who can genuinely guide you to the right decisions to be made.  You should not act unilaterally and retain a child in breach of a longstanding parenting arrangement without first seeking advice.  Acting unilaterally regarding parenting matters can have a devastating long-term impact on your case before the Family Court. 

We urge you to seek legal advice from an experienced family lawyer as soon as possible. We are here to provide you with professional and efficient family law advice, and to negotiate your parenting arrangements on your behalf, or we can go to Court to represent you in the Family Court proceedings if needed.  

Balancing the child’s best interests with your own wishes can be challenging for some parents, and parenting matters require a level of experience and sensitivity to ensure your post-separation parenting relationship with the other parent is prioritised for your children’s sake.  The last thing any child needs is their parents being in entrenched conflict with each other.

If you have concerns with regards to your child’s living arrangements or know someone who does, call us at Perth Family Lawyers for genuine legal advice on (08) 9325 8675, today.