When can my child decide who they want to live with?

Children’s Wishes in the Family Court

A common question for parents is, ‘When can my child decide who they want to live with?’ It seems a straightforward question, however, the answer is complex and dependent on a number of factors.

How are the child’s wishes considered by the Family Court?

The question of which parent a child lives with is determined by a number of factors, one of which is what is in the ‘best interest of the child’. The child’s wishes are but just one of these best interest factors. Generally speaking as a child gets older the Court will place greater weight on the wishes of the child on the basis of an increased maturity and understanding.

The Court’s paramount consideration is to make decisions in the best interests of the child. In determining what the best interests of the child are the Court must first primarily consider:

1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (the greater consideration)

One of the additional considerations the court must also have regard to are: any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

For example, it may be the case that once a child reaches the age of 14 years their views may be more heavily weighted because their maturity and understanding. There may also be practical reasons. It may be difficult to force a 14 year old to see a particular parent against their wishes.

How does the Court find out what the child’s wishes are?

The Court has the power to order what is commonly referred to as a ‘wishes report’. The wishes report if ordered, will usually involve a Court based psychologist or social worker interviewing the child with respect to the child’s wishes.

Each parent may also be interviewed in relation to their perceptions of the child’s wishes if need be. If the family dynamic requires more thorough examination, a family report may be conducted by a Single Expert Witness to the Court being a Psychologist or Psychiatrist.

If you require any advice regarding your children’s arrangements, please book in for an initial consultation.