At what age can a child decide who they want to live with?

At Streeterlaw, we are often asked ‘at what age can a child decide where they want to live?’ Unfortunately, there is no simple answer to that question. When there is a dispute about where or with whom a child will primarily live, the child’s wishes are just one of a number of factors a Court must consider when making a decision.

Technically, a Court has the power to make orders for any child under the age of 18 years. Generally, although not always, a Court will not make orders against the strongly held views of a child if that child is in their mid-teens unless it deems those wishes to be against the child’s best interests. With older teens, the Court is mindful that even if an order is made, a strong-willed teen may refuse to comply with that order.

So how does the Court decide what is in the child’s best interest? The Judge is assisted by the guidelines set out in the Family Law Act 1975, specifically Section 60CC which sets out two primary considerations being:

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

There is a long list of what it calls additional considerations, only one of which regards the views of the child. It states:

• 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;

Recent case study

The recent case of Timms & Payton [2015] FCCA 3324 (18 December 2015) dealt with an interim application of the mother for relocation of the child two hours’ drive south of where the family had been living and where the father would remain living. Importantly, the child in the case was an 11-year-old girl who expressed very strong views that she did not want to move with her mother. The Court stated:

• [23] “The strength of X’s views … is a strong factor contraindicating the making of an order that would allow her mother to relocate X. She doesn’t wish to move or to change schools. She is of an age where her views need to be listened to and, if possible, respected. However, all parties recognise that whilst X’s views are certainly relevant, and probably an important consideration, it is not the only consideration that the Court must take into account.”

The parents in the case had separated and entered into orders for joint parental responsibility and had a current arrangement for the child to live with her mother and spend time with her father each second weekend and for half of the school holidays. All agreed that the current orders were working well.

The mother’s evidence was that she intended to move with or without her daughter. The Court even commented that the mother’s reasons for the move sounded ‘hollow’. The Court was then left to decide what was best for the child. The father’s evidence was that he would prefer the mother not to move but that if she did, he wanted his daughter to live with him and spend time with the mother. A critical factor in the case, however, was that the father was unable to guarantee his availability to care for his daughter in her day-to-day routine due to the nature of his employment and would need to rely on outside assistance to care for her in the mornings and afternoons.

Remarkably, the Court found in favour of the mother’s relocation application for the child to move with her, mainly due to the fact that the father’s candidature ‘was not a strong one’ and that the “father is an unknown quantity in terms of being a primary carer, and the proposals that he advances for caring for X whilst at work are highly problematic”.

As the orders were only of an interim nature, it will be interesting to see what is decided in the final hearing of the application, if the matter proceeds.

What can we learn from the above case?

•  The best interests of the child are the paramount consideration.
• A child’s wishes are not always the determinative factor in the Court’s decision.
• Relocation cases are largely unpredictable.
• Each parenting case is heard on its own individual circumstances – the list of factors in Section 60CC of the Act are merely guidelines for consideration.
• The father’s case may have been stronger if he demonstrated a clear and stable plan for care of the child in the event that she lived with him during the week.

Streeterlaw are experts in all Family Law matters. For further information or to discuss your personal circumstances and how we can help you, call us on 8197 0105 or email advice@streeterlaw.com.au.