The weight given to a child’s wishes when it comes to their care arrangements is a complex issue and depends on the individual circumstances of that child and their family. In 2023, there is no set age that a child can legally decide to live with a specific parent. If a dispute arises between parents in relation to this issue, they can attempt to resolve matters between themselves, through mediation, negotiations with lawyers, or as a last result through a Court Application.
Families who are required to litigate their parenting dispute will need to attend upon a family consultant for the purpose of preparing a Family Report or Child Impact Report. If a child is of scholastic age (5 and older), and if it is appropriate given the child and the families individual circumstances, then the child will be interviewed by the family consultant where their wishes can be discussed and considered. It will then be up to a Court to determine what is in the “best interests” of the child/ren after having regard to all aspects of the dispute and evidence from a family consultant including their interviews with the child/ren. In some circumstances it may be required for an Independent Children’s Lawyer to be appointed to represent the interest of the children separately from the parent. It may be appropriate for the Individual Children’s Lawyer to also speak to the child/ren to help get a better grasp of the circumstances from the perspective of the child/ren.
Please be aware that a Court Application should only be made in circumstances where parties have exhausted all other means of resolving their parenting dispute. Protracted Court proceedings may cause stress on children involved and may have a detrimental impact on parents co-parenting relationships.
Whilst children’s wishes are important to consider, it is equally as important to keep in mind that some children, particularly younger children, do not have the maturity or developed emotional intelligence to make choices that represent their long term best interests. This is the responsibility of the parents. Some parents agree to be very accommodating of what their children need and want and may be happy to work with their children from a young age based on what they express. This is fine so long as both parents are on the same page and the children are afforded the opportunity to have a meaningful and significant relationship with both parents in a safe environment.
It is important to be aware that a child’s “wishes” may be transient, open to manipulation, or motivated by instant gratification or avoidance of things such as ‘chores’ and homework.
A child may want to be with one parent more because their favourite pet lives there, a best friend lives next door, or grandma visits often. They may miss attention from a re-partnered parent or not be a massive fan of new stepsiblings. It might be due to a closer bond with one parent or being at a developmental age with which one parent is more helpful. It may come down to which parent has a pool, knowing one parent is less stringent with homework or more dedicated to their art or sports. Children may be tired of going back and forth between two households with different rules.
It’s not always about who is a better parent or indicative of more significant issues such as abuse or neglect. That’s why the court weighs these matters carefully regardless of a child’s age.
How do the courts decide if a child wants to choose which parent to live with?
This can legally be a grey area in Australia, with many factors taken into account - including the views of the parents too.
If a child is anxious, afraid, or fiercely resistant to spending time with a particular parent their views on this matter will be significant as these feelings may arise from safety concerns/issues. It may be appropriate in these circumstances for time with a parent to be limited or supervised to ameliorate any risk to the child whilst also ensuring that a relationship is able to continue. The best interests and wellbeing of the child is of paramount consideration
If parents decide to live in areas that would make it difficult for the child/ren to attend the same school, it would also be necessary to consider a higher care ratio with one parent for practical reasons. The views of the child/ren may be considered by the parents when determining who they will reside with predominantly, and may include such issues as not wishing to change school or leave friendship groups if the non-relocating parent has the capacity to care for them.
If there are Consent Orders (parenting orders) in place, both parents need to use their best and most reasonable endeavours to ensure that the child/ren spend time in accordance with the Orders, unless legally changed.
Parents should not make any unilateral changes to parenting Orders without obtaining appropriate advice from family law solicitors or child protection (if applicable).
Can a child refuse to see a parent in Australia?
It’s generally in the child/ren’s and parent's best interests to maintain a meaningful relationship, provided that it is safe to do so. In ideal circumstances, parents will work together to ensure the best outcomes for their children and be supportive of their wishes, as long as they are beneficial to the child.
For instance, if one parent works away often, and children are left with new partners or carers often, it may be in the best interests of the child to be with the parent who can provide more present care. This could be balanced with longer holidays with the other parent or flexibility to visitation around work arrangements. Matters of this nature can often be navigated successfully by co-parents who are able to communicate and work out a plan together.
If a child is persistently refusing to see the other parent, family therapy or legal intervention may be necessary. In cases like this, matters may be assessed to ensure that abuse or neglect is not a factor, nor are there any issues of parental alienation by the other parent.
What is in the best interests of your child?
This is the number one question that parents, legal practitioners and courts should keep at the forefront of any discussion about parenting arrangements. What is truly good for the child, or children involved?
The maturity levels of children, and their ability to express themselves is always a consideration the courts will make, if an issue cannot be resolved otherwise. In most cases, parents should be able to reach an agreement based on what is best for the child, and their family, by discussing the matter. Teenage children will be much more able to state their needs than a younger child, and may wish to take part in discussions.
In most cases, if parents can see past what they want, they will be able to find a middle ground that works for everyone, while maintaining meaningful relationships with their children. If you need assistance in negotiating or renegotiating parenting Consent Orders, or assistance with mediation, please get in touch with our team - we are here to help.