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When navigating children’s care arrangements, one of the common questions I hear is, “When can my children decide who they want to live with?”. In family law, the answers aren’t always clear cut, as every child, every family and every situation are different. The Family Law Act (1975) does not specify an age for when a child can choose where they live. There are factors that are considered that provide some guidance to determine the appropriate response for your family.

In a perfect world, separated parents can work together and negotiate suitable arrangements for their children. With open lines of communication, this allows for flexibility between family members as required.

Alas, we are not in a perfect world and sometimes discussing and negotiating parenting arrangements can be overwhelming or difficult. Perhaps parenting orders need to be put in place to make clear arrangements that take into the considerations necessary for both parties and the best interests of your children. Our family law team are here to help, and here are some topics frequently raised when deciding the living arrangements for children when parents are going through separation or divorce.

Do I have to go to Court?

When dealing with family matters like child custody, it's important to keep a few key points in mind whether you're still discussing arrangements or hoping to avoid going to court.

It's usually best if separated parents can sit down and talk about what's best for their kids. This can happen in informal conversations or with the help of a mediator or lawyer. If those talks don't lead to an agreement, then you might need to involve the Courts to come to a decision.

What are the best interests of the children?

In May 2024 there will be changes to the Family Law Act that will clearly set out the issues to be considered when determining what is in the best interests of children and how parents can move forward with future decision making.

These factors are:

  • The safety of the children and the people caring for the children;
  • The children’s wishes;
  • The needs of the children, including developmental, psychological, emotional and cultural needs;
  • The capacity of the people caring to provide for the needs of the children;
  • The benefit of the children having a relationship with other significant family members; and;
  • Any other factors relevant to each family situation.

Ultimately - the children’s wishes are one element when determining their best interests, but they are not necessarily the overall deciding factor.

How do my children express their wishes?

When the Court needs to determine what is in the children’s best interests, the Registrar or Judge will often order that a Family Report be undertaken. In this scenario, an independent family consultant meets with the parents, children and significant family members and an assessment is performed. During this process, there will be a review of the family history and interviewing of family members individually or jointly will take place to consider the future needs of the family. It is during these interviews where the children can express their wishes.

Following the interview process, the family consultant will provide recommendations contained within the Family Report to the Court to aid in the decision making. The Court will use this information in conjunction with the age, maturity, and reasoning of the children to determine what care arrangements are considered to be in their best interests.

Considering my children’s wishes

The involvement of children in individual interviews during family consultations depends on the discretion of the family consultant. If the consultant feels a child isn't ready or comfortable expressing their thoughts on long-term issues, particularly those under five years old, they may opt for group discussions involving siblings instead.

For children aged 5-12, while they may have the chance to share their wishes, these may not carry as much weight due to being influenced by immediate preferences like snacks or bedtime routines. The consultant's understanding of the family dynamics helps determine how much significance is given to these wishes.

As children grow older, typically between 12-16 years, their ability to articulate meaningful preferences increases. However, external factors such as household rules and peer influence may still play a role in their wishes. With teenagers aged 16 and over, their preferences are usually taken more seriously. At this stage, they may demonstrate their wishes by simply refusing to comply. Nevertheless, it's important to encourage meaningful relationships with both parents and family members, even if the methods of maintaining these relationships change as children mature.

While these age ranges provide a rough guideline, each child's maturity level, reasoning, and unique family circumstances should always be considered.

Looking after your and your children’s well-being

Going through parenting negotiations can be hard for everyone involved, especially children. Changes in arrangements can often be confusing, regardless of their age. It is important to ensure that all family members involved seek support to look after their well-being and mental health. If necessary, speak with your GP or mental health practitioner to find out about additional support options in your area.

How can we help?

If you have separated and you don’t know how to negotiate your children’s care arrangements or your child is struggling with their existing care arrangements, the family law team at Mellor Olsson are here to help and guide you through the process. Reach out to us via phone on 8414 3400 or via email at [email protected].