Of all the issues involved in family law matters involving children, the issue where I suspect the most misinformation exists is whether there is a magical age where children can decide for themselves what the parenting arrangements will be.
Clients assure me that their GP/teacher/friend/counsellor said wait until the child is [insert age here], then it will be up to them.
They have “a friend who went through all this before” and were told that a [insert age here] year old does not have to see Mum or Dad if they don’t want to.
Let me put the issue to rest – there is no magical age.
Technically, the Family Law Act gives power to courts regarding children from the moment of birth to their 18th birthday. What happens in those years in between?
When determining parenting arrangements, the paramount consideration for Australian Courts is what is in the best interests of the children.
It is true that for your average child (not that your child is in any way average), the views of a 15-year old would carry more weight than an 8-year old. But what about a particularly immature 15-year old? Or a very strong-willed 11-year old? Or a 17-year old with a significant intellectual disability? What happens when promises of Xboxes and tickets to see Justin Bieber are influencing the views?
The views and wishes of a child are just one of many things considered when working out what is in that child’s best interests. The importance given to a child’s view can be given more or less significance having regard to:
- Not just the age, but the maturity of the child.
- How strongly the child’s views are expressed and held.
- The existence of other factors, such as factors around a child’s safety, etc.
If a matter is in court the children’s wishes may be determined in a range of ways including the tested evidence of the parties, a family report or an independent lawyer for the child. If court proceedings are not part of the picture a child could be involved through child inclusive mediation.
Once final parenting orders made under the Family Law Act, they are intended to have full force and effect until the child or children turn 18. So what should you do if you have a child under 18 that refuses to see the other parent – or if you are that other parent?
There may be both legal and non-legal solutions this issue, whether or not there are court orders in place. To get advice about this and any other Family Law matters, make an appointment with a member of the Family Law team at O’Farrell Robertson McMahon by calling 03 5445 1000.