Does a child have a say in custody cases?
Under Australian family law, children have a right to have a meaningful relationship with both their parents. This does not mean, however, that they necessarily get to have a say in child custody cases.
This depends on several factors, including the child’s age, the judge overseeing the case and above all, protecting the child from harm.
A court will make decisions on where a child will live and how much time they will spend with each parent by considering The Family Law Act 1975. They will then create an order that is in the best interests of the child.
Parental Responsibility and Child Custody
When parents of a child under the age of 18 separate, they continue to share parental responsibility for the child.
Legally this is known as equal shared parental responsibility.
Equal shared parental responsibility will always apply unless the court decides it is in the best interest of the child to remove responsibility from one or both parents.
It means that both parents will share the responsibility for all major decisions related to the child long term.
This includes decisions about where the child will go to school, how they will be treated medically and if they will be raised within a particular religion.
These responsibilities are shared between parents, regardless of the previous state of their relationship.
Equal shared parental responsibility does not necessarily mean the child will spend equal time with each parent. This will be determined via a parenting arrangement and may or may not take into account the children’s wishes as to who has primary custody of the child.
Parenting Arrangements and Custody
When parents separate or file for divorce, they need to make a parenting arrangement.
All parents should try and agree on a parenting arrangement without involving the family court.
If you are struggling to come to an agreement with your ex, you should attempt to resolve the dispute amongst yourselves.
This can be done through counselling, mediation or dispute resolution.
NSW has several services available to assist in family dispute resolution, including Legal Aid NSW, the Family Relationship Advice Line and Family Relationship Centres.
Many families find, however, that engaging a qualified family lawyer streamlines this process and results in a more satisfactory outcome for everyone involved.
A parenting arrangement may deal with one or more of the following issues:
- The allocation of parental responsibility
- In what way and how often the child will communicate with the parent they don’t live with
- Where the child will be educated
- Decisions around healthcare
- Spiritual and religious considerations
- Which parent will have primary custody of the children
When parents agree upon a parenting arrangement, including the issue of child custody, they can keep the arrangement informal, or they can apply to the court to formalise the agreement.
This is known as a consent order.
If people can’t come to an amicable parenting arrangement and have attempted to resolve their dispute via mediation or with the help of a lawyer, the case will then go to the family court.
The Best Interests of The Child
The Family Law Act specifies that the court must regard the best interests of the child as the paramount consideration when making parenting orders and determining which parent gets primary custody.
In assessing the best interests of the child, The Family Law Act states that the court must take into account the following factors:
- The nature of the child’s relationship with both parents and any other people involved
- The effect that any changes to the child’s current situation will have on their emotional and physical wellbeing
- The attitude of the parents to the children and parent responsibilities in general
- The capacity of each parent to provide for the child’s emotional and intellectual needs
- Any practical and financial difficulties that may hinder the child’s ability to continue a meaningful relationship with one of their parents
- Any family violence, including past or present family orders that involve the child or members of the child’s family
- What provisions in the parenting order will be least likely to lead to further court proceedings in the future; and finally,
- The children’s wishes
Does the Family Court think that a child should have a say in determining custody
When considering the children’s wishes in child custody cases, the court will look at two factors.
Firstly, they will take into account the child’s age.
In Australia, children as old as 17 years have had their wishes overruled by the court.
Secondly, the court will assess the child’s level of maturity.
In making this assessment, the court will be assisted by what is known as a family consultant (generally a qualified social worker or psychologist).
The family consultant will meet with the children involved and prepare a report for the court.
This report will detail the child’s maturity, their understanding of the current parenting situation and their capacity to make informed decisions.
It is important to note that a court won’t make a yes or no judgement as to whether they take the children’s wishes into account.
Instead, a court will decide what weight they will give to the children’s desires in line with other factors outlined in The Family Law act.
The biggest significance in child custody cases will always be placed on the child maintaining a meaningful relationship with both parents and being protected from family violence and abuse.
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.