Separated parents often ask when their child can decide where she/he wants to live.

This usually happens when teenage children are involved. There is no ‘magic age’ when a child can decide where she/he will live and the amount of time they will spend with the other parent. The Court’s paramount consideration is the best interests of the child. Pursuant to the Family Law Act 1975 (Cth) (“the Act”), a child’s views are to be considered when determining this issue. These views can be placed before the Court in a number of ways, most commonly by obtaining a Family Report.

Weighting

Section 60cc(3)(a) of the Act requires the Court to consider the following matters which may affect the weight given to the child’s views:

1. The degree of emotional and intellectual maturity of the child. Age is not, of itself, an indicator of maturity;

2. The apparent strength of the child’s wishes, and whether the strength of the views has been indicated by overt acts such as running away, emotional displays, temper tantrums, etc.;

3. Whether the child’s views seem to have a rational basis; and

4. Whether the child’s views can be shown to be wholly or partly the result of parental or other family manipulation.

The Court is required to give the child’s views the amount of weight it considers appropriate in the circumstances of the case. Generally, a child’s view will be given greater weight the older they are and the shorter the period of time until the child reaches the age of 18.

Reasons

If the Court rejects a child’s views, it must give clear and cogent reasons for rejecting their views. The views should not be discounted merely because they have been expressed by a child.

It is important that children are not put in a position of choosing between their parents. Thus, the issue of a child’s wishes should be canvassed first with professional advisers, including social workers, psychologists and counsellors. If parental manipulation is the driving force this may well have an adverse impact on the weighting the Court gives to the child’s wishes.

For more information on Custody and Children’s Rights, call Testart Family Lawyers on (03) 9854 6212, or contact us here.

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