What age do the kids get to make up their mind where they live?

Technically speaking the Family Law Act gives courts the jurisdiction to make family law orders regarding arrangements for children from the time of the birth of the child until they turn 18. The age can be even less if the child is married or in a defacto relationship (which throws up a few other legal issues).

Therefore a court can make an order regarding where the child lives up until the child is 18. An order stops being in force once a child turns 18 or marries or enters into a defacto relationship.

On a practical level, this means that you could apply to the court for an order regarding the living arrangements of a 17 year old.

It is important to then take into account how the court deals with such an application. In Family Law courts, the children never get to dictate what is to happen. However, the court is obliged to take into consideration the views of the child.

The court can do this by:

• Having regard to the matters contained in a family report prepared for the court
• Ordering that the children be represented by an Independent Children’s Lawyer — who is obliged to put the children’s views before the court although they can present to the court that they disagree that those views are not in the best interests of the child
• Or by such other means as the court considers appropriate

Usually, the more mature a child is — and I deliberately say mature rather than old — the more their wishes will be compelling to the court. They usually also become more compelling to the parties. However, the court does not just accept the view of the child at face value — the court will look at the circumstances around those wishes. This is what I sometimes refer to as the “PlayStation” factor – looking at why a child may have arrived at a view and is that in their best interests, is it just because someone has promised them a PlayStation.

Sometimes a practical element then comes into play — there is little point in litigating and getting orders if the child is going to make the implementation of those orders really difficult. That is why often there will be interim orders made to either test how something occurs or to gradually introduce the arrangements. It is also possible for the court to order that a counsellor oversees these arrangements.

What does this all mean? In my over 20 years of experience, I would say that the age is not the critical factor — rather you are better to put your effort into making sure your children are well supported so that arrangements are easily implemented.