Child custody matters can be emotionally charged and challenging for all involved, notwithstanding each parties’ best efforts to minimise conflict. A common question that arises is what weight the child’s wishes should have in determining where they will live and reside.
It is a common misconception that once a child reaches a set age, that they will have the ability to determine where they live.
In child custody disputes, Australia has no fixed age to legitimise a child’s residency wishes. Instead, Courts determine where a child might live, based on various factors, including a child’s maturity and independence.
Is There a Legal Age for Children to Choose Their Custodial Parent?
There is no set age for a child to have a view on parenting matters that is adopted or considered. The weight and relevance of the child’s view can vary significantly.
Although the Family Law Act 1975 (Cth) (‘FLA’) expressly states, at section 60CE, that a child cannot be required to express their views, in determining whether to make a particular parenting order. The Court must consider any views that are expressed by the child and apply such weight as is appropriate in circumstances having regard to the child’s age and degree of maturity, (section 60CC(3)(a) and 60CD(1))
The Court may inform itself of the view of a child by (section 60CD(2)):
- Having regard to the contents of a section 62G report (report often conducted by social worker with relevant qualification, a psychologist, or a court appointed consultant with relevant credentials);
- Making an order for the child to be independently represented (section 68LA(5)(b) now compels the Independent Children’s Lawyer to ensure the child’s views are put before the Court). The appointment of an Independent Children’s Lawyer is not an automatic right, the Independent Children’s Lawyer must be appointed by the Court. The factors for such appointment, is often referred to as the Re v K factors, coming from a 1994 decision of the Full Court of the Family Court.
- Such other means as the Court thinks appropriate, which may include consideration of a family consultant report, privately commissioned by the parties.
If a report is prepared by a family consultant under section 62G, that consultant must ascertain, and include in the report, the views of the child (section 62G(3A)) unless this would be inappropriate in light of the child’s age or maturity or any other special circumstances (section 62G(3B)).
Privately prepared family consultant reports generally address this issue (views expressed by a child) as a matter of course in the attempt to determine what parenting arrangements are in the child’s best interest. When commissioning a family consultant report, it is important for practitioners to ensure that the report writer specifically ascertains the child’s view and indicates what weight should be attached to them.
In Lancefield v Lancefield (No 2) [2020] FamCAFC 312, the Full Court allowed in part, an appeal where an order was made changing the residence of an 11- and 9-year-old. The Court found there were mistaken findings of coercive, controlling behaviour and the family consultant’s “impression” of one child’s wishes required further consideration.
Not to be touched on within this section, but family violence and risk factors to a child are always relevant considerations to a child’s wellbeing, within the interplay of any relevant views expressed by a child.
Age 16 and above
Generally speaking, children over the age of 16, will often vote with their feet, and exercise a level of autonomy not shown in younger children. The Court may place greater weight on older children, but this is not always the case, as there are a variety of other factors the Court must consider, primarily the child’s best interests and safety. Ultimately, the Court has the final say in making the decision, but final decisions are not made lightly, and are heavily informed by the facts of the case.
Age 12-15
Courts may consider the views of children in this age range, through the appropriate procedures in the Court process. It is important to remember that children are not directly involved in the Court process.
Age 6-12
Again, specific to a variety of factors, the Court may place some weight on a relevant view expressed by a child between the ages of 6-12.
Children 5 and under
Typically, children under the age of 5 are not interviewed unless they are a part of a group of siblings.
Conclusion
There is no general rule or age for which a child can express a view on where they would like to live or whom they would like to live with. Children are never directly involved in the family Court process, unless leave is granted by the Court, see Section 100B of the FLA.
The weight the Court will place on a relevant view expressed by a child is dependent on a multitude of factors. To understand this topic further, it is best to speak to a Lawyer about your specific circumstances. Our team at My Legal Crunch has many years of experience acting in family law matters as well as, acting as the Independent Children’s Lawyers for the named children in litigated parenting matters. Our professionals are committed to the best outcomes for our clients. Contact us today for more information.
