At what age can a child decide who they live with?

Monday, 20 February, 2017

Can you empathise with the mother who leaves an abusive or otherwise dangerous situation, then has to allow their child to spend time with their abuser? I can.

People may argue it was only the mother who was abused and not the kids. However, there are many well-documented cases of children being harmed, even killed in similar circumstances, where they hadn't previously been the victim.

Former Australian of the Year, Rosie Batty bravely brought this issue into our homes via the mainstream media when her ex-husband, a man who’d been violent for many years only towards Ms Batty, murdered their son Luke.

It seems reasonable to me that any parent, mother or father, in the same situation would be fearful and try to protect their child by limiting contact with the other parent.

At the other end of the spectrum, there are cases blocking the courts where dads are forced to ask the court to rule against obstructive mothers who won't allow shared care or even for the child to spend time with a father who is present, willing and capable of caring for the child, in many cases on an equal shared care basis.

Although well-meaning, these mothers are taking a shortsighted approach and putting their own insecurities before the best long term interests of the child.

Belinda* says:

'I have two children, a 16-year-old son and a 20-year-old daughter who has special needs. I left my husband because he was using drugs and had anger issues. Apparently, his lawyer said he has every right to have the children every weekend. I've raised them myself without his help. He’s been a hopeless father, never did anything with them, never attended any medical appointments or hospital. It’s only now I’ve left him, that he wants to take them from me. What are my rights?'

Divorce Resource says:

We have to keep in mind that the details provided are a very simplified version of the matter. The facts may be correct but at this stage, they are only from the perspective of the mother.

Long before this matter was allowed to proceed to court, the father would have a chance to provide his side of the story and the couple would have to attend mediation.

In all Australian family law matters, it is the child who has the rights and not the parents. Both parents have a responsibility towards, and not rights over, their child.

It is generally considered to be in the best interests of a child, wherever possible, to maintain contact and a healthy relationship spending time with both parents.

Of course, there are certain cases where a parent doesn't provide an appropriate environment or have the capacity to care for a child adequately but adequate is a much lower standard than many parents expect to be so.

Depending on the extent of the father's drug issue, and other issues which may surface when his 'anger issues' or his capacity to offer ongoing care for children are investigated, that may be the case in this situation. Perhaps not.

Even though you are the parent who has done the majority of the day-to-day caring in raising your family to date, try to eliminate language such as ‘take them from me’.

They are not ‘yours’ alone.

Start with the reality that every child has two parents.

Where both parents are involved, caring and loving, the child should be able to freely spend time with each parent, free of resentment from their other parent about being 'taken' away.

Nothing in Australian family law states that a parent is entitled to spend every weekend, or any other amount of time, with their child.

However, it is common for parents to come away from a meeting with lawyers feeling as though they have been advised they have the 'right' to spend time with their child and the lawyer can ensure it happens.

What they do have is the right to negotiate a parenting agreement with the other parent and to lodge an application to the court to make a ruling on parenting orders when private negotiations fail. Mediation is always my first port of call in parenting matters however, if that fails, a good family lawyer will indeed be able to assist in expediting the legal process.

Sometimes, a parent will default to the standpoint that a child doesn't want to spend time with the other parent and they are therefore acting in the best interests of the child to withhold access. This is often the case for dads who have been less hands-on in the family situation prior to separation. Unless your child is in danger, they are only likely to gain from spending time with their other parent and building a stronger relationship with them. Consider how you would feel if you were the parent that the child was saying, they didn't want to see.

Kids will say this for many reasons and they are not all valid. Tweens and teenagers test the boundaries by trying to establish their own agendas and pit parents off against each other. Some children align themselves with the parent they feel needs them the most; the parent who can't cope if left on their own. It's so damaging for the child to make them adult up before their time. Don't expect your child to keep you company in your loneliness or give you your only sense of purpose. Let them be a child and get on with having fun with both parents.

Younger children are less able to regulate their emotions and may need to be with their primary carer for longer periods of time. Flexibility is key here. In time, very young children can become extremely adept at moving between two homes. Some of the most resilient and organised teenagers I have met are from divorced families where they moved week about from one parent's home to the other.

When you have a child who is refusing to spend time with a parent, consider how it would make you feel if it was you they felt less comfortable with and what would you be asking or expecting of the other parent to help facilitate you spending time with the child.

Lodging an Application for Parenting Orders

Before you can lodge an application for parenting orders with the court, you must try to resolve your issues through mediation and obtain a Family Dispute Resolution Certificate S60i. In trying to agree on parenting arrangements, parents should take the wishes of their older children into account.

When a matter reaches court, the magistrate will always look to determine what is in the 'best interest of the child' to decide who the child lives with and how and when they spend time with the non-resident parent.

The court considers, amongst other things (read more), the amount of contact an older child wants with each parent; the 'wishes' of the child.

At 16 years of age, assuming his emotional and intellectual maturity is age appropriate, the son’s wishes would carry a lot of weight with the judge. It would be unusual for the court to rule against his wishes and force him to spend time with either parent if he did not want to.

It's important for his ongoing well-being that neither parent tries to coach him to say what they want. They should allow him to represent his own views without a sense that he is betraying them, should he choose to spend time with his other parent.

At 20 years old, the daughter is an adult, and the family court wouldn’t ordinarily get involved with issues about contact or living arrangements. Dependent on the extent of her unspecified 'special needs' it may be in this case the daughter is financially or physically dependent on the parents, and therefore there could be some consideration given to the financial responsibility of both parents regarding adult child maintenance.

What if the children are much younger?

Again, the best interest of the child is the primary consideration of the court.

The court takes into account the ability of each parent to provide appropriate living conditions and care for the child considering their developmental stage. The court considers each parent's situation on its merit including, but not limited to, their health, financial situation, employment commitments and to a lesser extent the other people that will live in the house when the child is spending time with the parent. Although it can be difficult (mainly for you) when a new person comes into the life of your children, in all except extraordinary circumstances, this doesn't mean the court would stop your ex's new partner from living with or spending time with your child.

A judge also listens to the wishes of a child who is vocal about where they want to spend time living and weighs this up against their age and maturity.

The court may use the services of child-experts such as a psychologist, an Independent Children’s Lawyer and other expert witnesses to help the judge reach his or her decision.

In cases where one parent has concerns about the well-being of the child when they are with their other parent, they are advised to document everything and collect evidence to substantiate their concerns. If they wish to take advice from a family lawyer a well-documented body of relevant evidence can help significantly in bringing a case to resolution.

The Split Kit contains a Violence and Abuse Register which can be used to monitor and record parenting incidents.