As part of any divorce where there are children, there will the decision, often made in court following submissions from respective family lawyers on behalf of their clients, as to which parent those children will live with.
In most cases, that is likely to be the mother, although there is never an assumption that it will be, which is not what most people believe to be the case. Most parents are somewhat shocked to discover that the courts do not automatically order that the children live with their mother.
Further to that, even if they do live with their mother, that is not to say that she has custody of the children. So, simply because the children live with her, the mother does not have the right to make all the major decisions relating to the children life and upbringing.
The reason for that is due to the Family Law Act, and the terms in it, which state that, when a couple divorce, they each have shared parental responsibility. That means that both of them must have an input into and agree to decisions relating to important matters of a child’s upbringing such their schooling and their health.
Obviously where the children live is also a major part of their lives, and for young children, the decision is one which is made for them, either by the parents agreeing, or with the court making a parental order.
However, children do not stay young forever, and there may come a time as they grow and mature that they want to live with their father, instead of their mother.
In Australian family law, there is not a stipulated age which a child can make that decision. In other words, the number of candles on a child’s birthday cake, does not determine whether or not they can choose which parent to live with.
This is another aspect of family law that many parents are unaware of, and many assume that when a child reaches a certain age, they can make that decision. Most believe it is 12 years of age, nothing in family law states that.
The age of the child is not the determining factor in whether their choice is sanctioned by the court. That means a 15-year-old child is no more likely to be granted their wish, than a 12-year-old child, simply because they are older. In fact, there are several factors the court will consider.
The first is whether or not it believes that the child is mature enough to make an informed decision. Bear in mind, age is no guarantee of maturity so again their date of birth makes no difference here. Also, under consideration by the court will be whether it thinks the child has the capacity to make the decision given all the circumstances which exist.
It is also likely that the court will order a family report is produced in which a professional with expertise in children and families, such as a child psychologist, will speak to the child, the parents and other relevant people to gather their views. Once the report is complete it will be given to the court, along with recommendations.
A children’s lawyer may also be appointed, to further assess the child’s circumstances and their wish to live with a different parent. Once this has been done the court will make its judgment, primarily based on what it feels is in the child’s best interests, not the parents’.