Whenever a couple who have children divorce there will many matters relating to those children that they will need to discuss with their family lawyers. Multiple aspects of those children’s lives need to be agreed and one of the most important will be which parent the children will live with.
That is usually the mother, however, there is nothing in Australian family law that states that has to be the case. In fact, although children may live primarily with their mother, their father will share parental responsivity for their children.
This means that both parents will be required to discuss and agree on significant elements of each child’s upbringing. These include the choice of school for the child, decisions relating to their health, and how the child is going to be educated with regards to cultural and religious matters.
Despite the many stories you might hear about divorcing parents ‘going to war’ which each other with regards to their children, the reality is that the vast majority of parents manage to put aside their difference and work in the best interests of their children. They communicate civilly and when it comes to making decisions, they make them for the benefit of their children.
This usually continues for the entire time that parents have a legal shared responsibility for their children. But what may happen is that there comes a point when, as the child ages and starts to know their own mind, that what they want may differ from what their parents are deciding. One of the most significant of these is when the child wishes to decide for themselves which parent they live with.
This scenario may actually exist at the time the divorce is happening where there are children who are of a certain age, who know their own mind, and tell their parents that they wish to live with a particular parent.
When we talk about a child’s age in this regard, there is actually no specific age they have to have reached before their views may be considered by a family court. What that means is that whatever age a child has reached, the court may consider their views with regards to their upbringing, including what parent they live with.
Rather than their age, a court will more readily consider the child’s maturity. Elements of that will be their understanding of the court process, and how informed they appear to be about making this kind of decision. Another important point the court will look at is whether or not there has been undue pressure or attempts to influence the child by either parent.
A court is likely to request that a family report is produced. For this to happen a family consultant will speak to the parents of the child and the child. They may also request to speak to others, like the child’s teacher, who can shed more light on the child’s maturity and ability to make such a decision for themselves.
Once the family consultant has all the relevant information they need, the court will be presented with the family report, including the family consultant’s recommendations. The court may also order a family lawyer be appointed to represent the child and make their recommendations. When the court has all the findings and reports it requires, it will then make a decision as to whether it should grant the child’s wishes.
