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Family Law

When is a child’s view taken into account regarding custody?

By August 8, 2016No Comments

By Gianna Huesch

In a family law custody dispute, you may wonder whether your child’s wishes will be taken into account by a court in determining how time should be spent with each parent.

There can be a popular misconception that once a child reaches a particular magic age, such as 12, that they may suddenly be able to decide for themselves who they want to live with.  However, there is no set age at which a child can choose who they live with, or choose when or if they see the other parent.

A child may express strong views about who they want to live with, however those views are one of a number of factors to be taken into account by a court when deciding who the child should live with.

When there is a family law custody dispute regarding where your children will live and how much time your children will spend with each parent, the starting point will be Section 65DAA of the Family Law Act.  (While we colloquially still understand the word “custody” as relating to where a child lives, the courts use the terms “live with” and “spend time with” instead.)

Under the Family Law Act, the courts’ paramount consideration when making decisions about a child’s living arrangements is to uphold the “best interests of the child”.  The courts must consider the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from the risk of physical or psychological harm. In addition, however, the courts must also have regard to, among other things, any views expressed by the child and any factors (such as the child’s maturity or level of insightfulness) that the courts think are relevant to the weight that should be given to the child’s views.

The Family Law Act lists the following factors courts must consider:

  • Any wishes expressed by the child. When interpreting these wishes, the court must give weight to any factors relevant to the child’s ability to interpret their situation, such as their age and level of maturity.
  • The nature and history of the child’s relationship with each parent.
  • How a change to the child’s circumstances may affect them, for example how a child may be affected if separated from either of his or her parents or any other person (siblings, grandparents, parent’s partners) the child has been living with.
  • Any practical difficulties that may arise with custody arrangements, such as financial expenses or lifestyle and education obstacles involved in long-distance parenting arrangements.
  • The ability of each parent to provide for the child including his or her emotional and intellectual needs.
  • Each parent’s attitude to the child and their demonstrated dedication to the responsibilities of parenthood.
  • Any history of family violence.
  • And any other facts or circumstances the court feels relevant to the case.

Whilst parental responsibility is generally shared between the parents, there is no guarantee of a 50/50 split in time shared with children. Where a court determines an unequal share of time between parents, the court must consider allocating “substantial and significant time” instead.  In some cases, however, courts have completely revoked parental time, for example in cases involving domestic violence or sexual abuse.

Even where an apparently mature and insightful child has expressed strong views, a court may still need to assess whether there has been any manipulation of the child, or whether the child is attempting to please one parent, or if there are other underlying reasons for a child’s refusal to spend time with a parent. To make a determination about this, a court may appoint an Independent Children’s Lawyer to give an independent view of what is in child’s best interests. In other cases, treatment notes from social workers, psychologists or other health professionals may come into play in assisting a court to determine whether to vary or set aside orders. The Court may also order that the parties and the children attend upon a Court appointed expert to prepare a Family Report.

Do you need family law advice in relation to parenting arrangements? Please contact Cristina Huesch or one of our solicitors here at Alliance Family Law on (02) 6223 2400 for an initial cost-free no-obligation half hour conference.

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