There is a common misconception about age being a significant factor when deciding the custody of a child. Surprisingly, age is not as important as one might think. There is no fixed age for when a child can decide which parent to live with during a family dispute. In most cases, there are no opportunities where the child will be the prime assessor in their parental concerns. Instead, only their views are considered amongst other practical factors by the Federal Circuit and Family Court of Australia.
There are two primary considerations that the court will favour when it comes to deciding the custody of a child:
- The benefit to the child of having a meaningful relationship with both of the child’s parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
However, under section 60CC(3)(a) of the Family Law Act 1975, it is noted that additional considerations may be any views expressed by the child and factors (such as the child’s maturity or level of understanding). It is important to recognise that the word “wishes” was replaced with the word “views” in 2006 to acknowledge that a child may not be able to boldly express who they want to live with. The word “views” was implemented with intention to capture a child’s perception, perspective, and feelings rather than a single decision.
Other considerations include the nature of the parent’s relationship with the child (including grandparents), the parent’s willingness to encourage the child’s relationship with the other parent and the capacity in which the parent can facilitate for the child’s needs. Moreover, it is not mandatory for the child to express their views if they are unwilling. Any attempts to extract or force their thoughts will regarded to be invalid as coercive behaviour was used to influence the child.
For example, if an eight-year-old is portraying elevated levels of maturity and understanding of the conflict between their parents then the court may place substantial weight on their views. Similarly, if a fourteen-year-old prefers to live with one parent due to bias of money and lack of discipline rather than their better interest with the current primary carer, the court may assess the child to be lacking maturity and stress their views less.
If you or someone you know wish to discuss this matter further, then please contact our experienced solicitors at 02 8999 9809 for assistance.