Family Law Q&A

Family Law Q&A


At what age can my children choose who they live with, and/or choose how often they see the other parent? At what age can a child’s views be more influential than that of their parents?
There is a common misconception that in Family Law parenting disputes about with whom a child will live, a child will have the deciding vote when they reach the age of 12. This is not the case. There is no set age at which a child can choose who they live with, or choose when (or whether) they see the other parent. A child is legally a minor until he/she turns 18.

While a child may express strong views about who they want to live with, those views are just one of a number of factors to be taken into account by the court when deciding who he/she will live with. Any decision concerning a child’s living arrangements, including working out when they see the other parent, must be made in the best interests of the child.

The weight given to the views of children in parenting proceedings depends on the age of the child but importantly, it also depends very much upon the maturity, insight and understanding that particular child has.
There will come a time where a child is able to ‘vote with their feet’ so to speak and place themselves physically where they want to be. That time is not attached to a specific age.

Parents, caregivers and allied health providers, ought to avoid giving children the impression that the child’s decisions will be final as soon as they turn a particular age. Not only might such advice be incorrect should the case end up in Court, but it may compromise the trust the child has in the parent. If the advice has come from a counsellor, it may disrupt the rapport a child has built with the counsellor and interfere with the therapeutic intervention.

The Court has a process for assessing where a child’s purported reluctance to spend overnight time with a non-primary caregiver has come from a parent, rather than from the child themselves. The Court will look beyond a self-serving statement made by one of the parents to try to find some other evidence of the child’s view in order to reach a decision. In litigated parenting disputes, this might involve the Court appointing an Independent Children’s Lawyer (“ICL”), to give an independent view of what would be in a child’s best interests. An ICL however, does not necessarily do what a child says that they want.

I’ve been told that the Law is that we must share the children 50/50. Is that right?
The law does not say that children must spend equal amounts of time with each parent after their parents separate. There is however a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them.

Equal shared parental responsibility and equal time are separate and distinct from one another. In fact, Equal shared parental responsibility comes first before an order for equal time is even considered

In the case of Goode and Goode (No 2) [2007] FamCA 31, the presiding Judge stated:-
“From the children’s perspective, I can only see good will come from their parents jointly exercising parental responsibility.”

Therefore, in the absence of Court Orders, Parental Responsibility is deemed to be shared equally between parents, meaning that parents have to consult the other and make joint decisions in relation to major long term issues affecting their children, including

  • Where a child goes to school;
  • What surname the child has;
  • What religion a child practices;
  • What medical treatment to provide a child with major health issues; and
  • Change’s to a child’s living arrangements.

All other simple day-to-day issues including what the children have for meal time or whether they attend school excursions does not require a parent to consult with the other parent.
The law does say that, where the parents have equal shared parental responsibility the parents (and the court) must consider whether an arrangement where the child spends equal time with each parent is:

(a) in that child’s best interests; and

(b) is it reasonably practicable.

If the answer is “no” to either (a) or (b) then the court must consider whether the child should live with one parent and spend “substantial and significant” time with the other parent. Again, the parents (and the court) have to consider whether the arrangements are in the child’s best interests and reasonably practicable.

Are you in the process of working through custody arrangements? Do you need assistance with your child custody matter? Contact Solari and Stock Miranda on 8525 2700 or click here to request an appointment.

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