In Australia, a child can express their views regarding custody or visitation arrangements, and the court may consider these views. However, whether a child’s refusal to see a parent will be legally upheld in Australia depends on several factors.
Age a Child Can Refuse to See a Parent
A child under 18 has no automatic legal right to refuse to see a parent after divorce. Parents will decide privately about parenting arrangements by agreeing on what is best for their children or by the courts after evaluating the family dynamic.
However, a child can express their preferences in Australian courts. Generally, a child’s perspective begins to carry more weight in these decisions at around the age of 12.
Once the child has reached the age of 18, they can make their own decisions about where they live or which parent they want to spend time with.
Court’s Considerations in Child’s Refusal to See a Parent Under 18
Section 60CC of the Family Law Act, 1975 outlines various factors the court will consider when determining parenting arrangements after divorce and separation. A child’s wishes are mentioned explicitly under subsection 60CC(3)(a) of the Family Law Act.
That subsection acknowledges the importance of a child’s preferences, including instances where a child may refuse to see a parent. However, a child’s wishes are not the primary elements the courts will rely upon in parenting matters.
Under section 60CC(3)(a) of the Family Law Act, 1975, the courts focus on two key areas being:
- The potential benefits of a child enjoying a meaningful relationship with both parents; and
- The need to ensure children are protected from both physical and psychological harm.
Even in cases where a child might suddenly refuse to see a parent, the Australian court system does not generally favour setting up a parenting arrangement where one parent is denied access to their child simply on that basis.
Court’s Assessment of Child’s Maturity
While the Act doesn’t set a specific age, it does guide courts to give ‘weight’ to a child’s views depending on their age, maturity, and level of understanding.
This concept was established in the notable case of ‘U v U’ (2002) 211 CLR 238, where the High Court stated that their views should be given more weight as a child grows older.
Each case is unique, and courts will consider various factors such as the child’s emotional development, intellectual capability, and understanding of the situation. It’s up to the judge’s discretion to determine how much weight a child’s views should carry.
For more information about a child’s voice in custody matters, we have created a separate article: “Does the Child Have a Say in Custody?“
Healthy Parenting Arrangements Through the Courts
The best outcomes in family law proceedings always occur when both parents are committed to working together to co-parent their children.
When determining parenting orders, courts will consider several factors:
- The nature of the relationship between the child and each parent
- The willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
- The court will also consider any other facts or circumstances that it thinks are relevant. The ultimate goal is to uphold the best interests of the child.
The courts consider the factors cited above and advice received from family court report writers and Independent Children’s Lawyers.
That way, we will not have to ask if a child can refuse to see a parent – instead, allow the parents to make that determination.
In a simple shared co-parenting arrangement, both parents will work closely together, communicate about each child’s life, and always check with the other parent before making significant decisions.
Reasons a Child Would Refuse to See a Parent
Several factors may contribute to a child’s decision not to see a parent in Australia. The following reasons can provide some insight:
- The Impact of Parental Alienation: A situation may arise where one parent consciously or subconsciously influences the child to become distant or estranged from the other parent, often confusing what age a child can decide not to see a parent in Australia.
- Comfort-Based Preference: Children may develop a preference to stay with one parent due to the nature of the parent’s lifestyle, living conditions, or the strong bond shared.
- Exposure to Abuse or Neglect: In graver situations, a child might refuse to see a parent due to physical or emotional abuse or neglect, further complicating the understanding of what age a child can decide not to see a parent in Australia.
- Effects of Family Conflict: Persistent conflicts and disputes between parents can influence a child’s decision to spend time with either or both parents.
Determining the root cause of a child’s refusal to see a parent is essential as it plays a significant role in how family law matters are navigated in Australia.
When Fatherhood Meets Legal Challenges: A Justice Family Lawyers Case Study
In a sensitive case centred around the question, “What age can a child refuse to see a parent in Australia?” our client, a father, approached us for guidance.
His 15-year-old child was just refusing the court-ordered visits.
Our child custody lawyers provided comprehensive advice to our client, explaining that family therapy may be the best recourse here.
We enabled a more empathetic approach toward resolution by facilitating open communication between him and his child and providing insights into the child’s legal petition.
Are you wondering, “What age can a child refuse to see a parent in Australia?” These family matters are complex and require expert guidance.
Reach out to Justice Family Lawyers today. Our skilled team will help you navigate this intricate issue with your child’s best interests in mind.
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
35 thoughts on “Can a Child Refuse to See a Parent in Australia?”
I have received a court order stopping me from seeing my child and making me do a hair follicle test. Do i have to comply with this?
Hi Bryon, normally you would have the opportunity to put forward your case before the court makes these orders. It might be that you have received an application to the court requesting this, and they may not actually be orders from the court.
My 13 year old has decided she no longer wants to go to her dads every second weekend anymore, where to from here in supporting that decision of hers
Hi Lindsay it is really dependant on whether or not their are court orders in place. If they are, then they should be amended. The first step would be to invite the father to a mediation to discuss the concerns that are raised by the child and see if the schedule can be amended. Potentially it could be more day time visits to suit the schedule of the child.
My granddaughter is being targeted in her family by her mother and step father. The abuse is psychological and I am concerned about her psychological well-being. She wants to live with me or her Dad. What can I do to help her?
Hi sandra the first step is to take the matter to mediation and if that does not work, you should consider making an appplication to court to have the child reside with you. If you want a more detailed consultation about this please get in touch with our office.
What happens if the child is 7 years old and the mother has manipulated the childs views against me? What can i do?
Hi Roger, a court will acknowledge that a child at 7 years of age will not be able to make most of their life decisions, including the decision to not spend time with one of their parents.
Hi my 14 year old wants to come and live with me because of her mother’s ongoing alcohol abuse. This is proving to be a very toxic environment for my child.
There is currently a parenting plan in place but no court orders.
Any advice on how to proceed would be greatly appreciated.
Thank you.
How does it work if the father has dropped contact with child after 3 failed mediation agreements. The last visit was when the child was 4.5. The father has now had another child and wants contact with his first born who is now 10.5 – following 6 years with no contact. The fathers family see’s the involved child regularly.
Hi, given that the father has failed to comply with the mediation agreements, it may be best to seek a more formal parenting arrangement in the form of either shared or sole custody orders. It is recommended that you consult with an experienced family lawyer to receive advice on the best steps moving forward and likely outcomes.
My 9 year old daughter is refusing to spend every 2nd weekend with her father. She hadn’t see him in 6 weeks. She was sleeping in his bed up until this time now wants her own space and room which he won’t do. She says she also feels unsafe as he has left her alone in the house and briefly at a shopping centre . As a concerned mother I want to do what I can to support my daughter and ease her anxiety. How do I do this ? Court orders are in place
Hi Kylie, this is a difficult situation where you have to assess what is best for the child. Is it something you can push a bit harder on, to ensure that she maintains a relationship with her father? Potentially you cna take the child to a child psychologist to help unpack what she is feeling?
My 10yo son has decided not to see his mother on grounds of yelling/screaming at him, ignoring him, isolating him from the rest of his family and controlling who he talks to and sees. We have shared care Court Orders. I have been encouraging him to see his mother, but I will not force him. Will the Courts take his opinions into account? His mother was very controlling and abusive to me when we were in a relationship, and I have a feeling she is doing the same to our son.. where to now?
If your son is refusing to see his mother due to her alleged behaviour, it may be necessary to seek a variation of the current court orders. This should be done through legal channels and using evidence where possible to support these claims. It is important to note that the court will be cautious about altering arrangements that provide for shared care without substantiated reasons.
Given the age of your son, his views may be considered by the court, however would be weighed against the consideration of his best interests. The steps to take from here would generally involve seeking advice from a family lawyer who can provide guidance based on your specific situation, considering mediation or family therapy as a way to resolve the issues outside of court or receive an expert opinion, and if required, applying to the court to have the orders varied.
Me and my husband are not separated but my sister whom I no longer speak to due to narcissistic abuse started talking to my 14 year old without my consent my daughter has sli disability (learning disability) and is vulnerable and easily led my sister manipulated my daughter into leaving home and living with her, I have not heard from or seen my daughter for 1 and a half months I don’t understand how my sister has been allowed to take my daughter from me, my daughter consented but she is not mentally equipped to give consent
Hi, you should try and mediate and if that is not successful, apply for court orders to have the child returned to you.
Me and my ex-wife have been separated for five years during this whole time I’ve been out side the country. I’m an American non Australian citizen. We have a court order that I am to give her a month notice prior to coming to Australia. My kids at this point refuse to talk to me on my designated phone calls and I’m afraid that when I arrive to visit them they’re going to refuse to see me. Their mother is not always cooperative. Their whereabouts are kept hidden. And I have expectations to visit in December. What do I do?
Hi
Please get in contact with our team for a consultation. You could threaten a contravention application if the mother is not cooperating and abiding by the orders.
Hi, My daughter is 12 years old. living with mother. me and my X-husband separated and we have court order in place for my daughter to visit her father in Melbourne every school holidays. She went for a year but now she is refusing to go. she is saying that her father is leaving her home alone in the night when she is a sleep and giving her money to buy some lollies/drink if she will wake up in the mornings. Shops are more than 50 meters away from his rented house. She is feeling unsafe because if she refuses he yells on her. now and then he left her to one of his friend’s house for the whole day. He father smokes a lot and eating tobacco in front of her that she doesn’t like it. What should i do now?
When a child expresses discomfort with court-ordered visitation, it’s important to take their feelings and safety concerns seriously. Given your daughter is 12, her views are more likely to be considered by the court when assessing her best interests. It is advisable that you seek legal advice as soon as possible to discuss your options and the best way to proceed.
wrong email should be
can a grandparent prevent a grandchild leaving australia for japan (known diffiuclties) with the mother when the parents live together but are not in a relationship, just cohabitating for the sake of the 3 year old. The mother has once before refused to come back to australia (had the child with her) but was persuaded by her japanese family to return to australia eventually. The father (my son) seems unable to argue that the child should stay in australia because he does want to get in conflict with the coercive mother for the sake of the child. Hence we believe that he would not prevent her leaving, and does not understand the consequence of her being in japan and the lack of judicial process to get his son back to australia. The child has dual japanese/australia passport but born in australia, hence au citizenship.
Grandparents in Australia do not typically have the legal authority to prevent a grandchild from leaving the country with a parent. However, if there are concerns about the child’s welfare and the potential for international relocation without the consent of the other parent, it may be possible to seek legal intervention. Given the complexities involved, it is important to speak to a family lawyer to get specialized legal advice.
Hello
My sons on an order from dhs.
He’s 16 and I’m wondering when he can choose to come stay over with me. My dad has custody which he lords over me. I went to court last year to try and get my son to stay over once a week. I have a large dog that my dad thinks is a fighter dog. He is not. I can’t see my son now without an order because I got him a job at kfc. I’m flabbergasted.
Hi, given your son’s age, the court will generally give greater weight to his opinions when determining what is in his best interests. However, when the Department of Health and Human Services (DHS) is involved, and there is a child protection order in place, the situation can become more complex. The reasons for DHS involvement and the specific details of the order will significantly impact the court’s decision. We recommend that you speak to one of our experienced family lawyers for a better understanding of your case and tailored advice for your situation.
Hi, my 14 year old daughter no longer wants to see her father anymore. He has emotionally manipulated and blackmailed her, he also is unable to have an effective conversation with her when she has brought up her concerns and wishes, because she looks, sounds, and acts like her mother. What to do from here in her best interest?
It is recommended to consult with a family lawyer for tailored advice based on your specific circumstances. They can guide you on addressing your daughter’s concerns, potentially through mediation or seeking a variation of parenting arrangements. If there are existing court orders, it is important to continue following them where possible until receiving further legal advice.
My granddaughters mother doesn’t comply with what court order says she rules the roost granddaughter who is ten gets upset as she misses out on precious hrs with her dad she wants to live with him can she decide this
In Australian family law, a child’s preference is considered, especially as they grow older and are able to form their own views. The child’s age, maturity, and comprehension are crucial factors in determining how much weight is given to their preferences
Given your granddaughter’s age and expressed desire, her views might be considered by the court, but it will ultimately depend on her maturity and understanding. It’s advisable to consult a family lawyer to explore this matter further.
If a child ( 9yo) is not being cared for by his mother and is claiming she abuses him and the father is in prison can the paternal grandmother ( who has 50/50 shared custody , nothing official) get an intervention order on the child’s mother? The child wants to stay with the grandmother but from what I have seen the law doesn’t give her many options. Does the dad have ( he is in the child’s life) have any rights? Thanking you for your advice in advance
Since the grandmother currently has an informal 50/50 shared custody arrangement, she can apply to the court for formal custody or guardianship, especially if she can demonstrate that the child’s welfare is at risk with the mother. It is advisable that she consult with an experienced family lawyer to have a better understanding of her rights and likely outcomes in her situation.
We have 50/50 court orders in place from 2014 when my children were living in “Extreme conditions” as stated by Children’s Protective Services. At the time the mother had them living in extreme garbage. After a long court case and no real evidence that the mother had received and mental health help the court rules 50/50 again. Now my daughter that is now 14 has made allegations of abuse from the grandfather. The police and Children’s Services then went to the school to speak to my daughter. After this the police called the mother and spoke to her about it. The mother and her sister(auntie) then abused my daughter telling her that she is not welcome to any family events etc anymore. Now my daughter do not want to return to her mother’s next week for fear of what the grandfather, mother and other family will do or say to her and she does not feel safe. My stance on this is to support my daughter in what ever keeps her safe physically and emotionally. Does she have the right to refuse to go to her mother? My understanding is only the federal police can remove her from my care, but if she has reasonable ground to not want to go they will not step in.
Hi, please contact our office directly to receive advice on your situation.
Hi Byron
My daughter has recently been diagnosed ADHD, and since then my ex-wife (her mother) has just become abusive to myself, even in front of our daughter, accusing me of trying to brainwash our child. She is also trying to reduce the time my daughter is with me.
She has always been an angry person and my daughter (currently aged 10) says she yells at her all the time when she is there and has done for years, even in front of visitors and student teachers who may stay there for a few weeks. Last week she asked if she could live with me as she doesn’t want to go back there.
Now, when I see my daughter, she is upset and cries when it’s time to go back to her mother’s place.
I can’t stand it, my daughter is suffering with all the verbal abuse, but I don’t know my next steps to either force her to stop (unlikely that she is capable) or getting my daughter to stay with me 100% of the time.
Hi David, It is advisable to consult with an experienced family lawyer to discuss your situation. They can provide guidance on the best course of action, whether it involves modifying the current custody arrangement, seeking a protective order to prohibit verbal abuse, or taking other legal steps to ensure your daughter’s safety and well-being. Organising family therapy for you, your daughter, and her mother could also be beneficial, allowing these issues to be addressed and managed in a non-confrontational space.