There’s little doubt that one of the most common questions separated parents ask is, “What age can my son or daughter make their own decisions?” particularly in the context of who they might want to live with. It’s a question that is plagued by myths. In this podcast, Family Lawyer Matt Stimpson answers the question and dispels the many myths surrounding it.
Dan: Matt, is there a simple answer to this perennial question?
Matt: There is, Dan, it’s 18 years of age. It’s one of those questions that’s very important in terms of a child’s life and moving into their future. And so, in that respect, the decision that they can make as a child as to where they live becomes paramount on the age of turning 18. The courts are concerned with what a child expresses in terms of their view or their wish. If a child says to a parent, “I’m not going to school anymore. I’ve finished my schooling career and that’s that,” prior to obviously finishing school, most parents are going to turn around and say, “Think again,” and they’ll be going to school tomorrow. If a child comes home and says, “I’m not spending time with my mother or my father and I’m only living with my mother or my father,” as the case may be, the court has a very similar approach to that.
Dan: So age 14 isn’t that miraculous number?
Matt: Well really, there is no number, and as I said before, if a child wants to make a decision, essentially it is 18 years of age. Once they attained a majority, they can do as they please. The court will take into consideration a child’s views and a child’s wishes as expressed. They don’t have to, and it’s important to note that. Obviously, if parents agree to a child’s living arrangements, then there is no issue. But if they can’t agree, then the court will need to determine that. The court is primarily governed by the Family Law Act, and the act says this, that there is essentially a presumption that a shared role in a child’s life is in the best interest of the child, to have both parents as part of their parenting arrangements. Again, the best interest of the child is paramount.
Matt: There is a recent high court case which involved two children living with their primary caregiver and they went on holidays to New York. On holidays, they expressed a view that they weren’t coming home and they were going to live with their primary caregiver. The family court ordered that the children be returned to Australia because that was not in their best interests. They did express a wish and a view that they would like to stay in the United States. However, the family court, the full court and the high court, all ordered that the children return to Australia. The important principle that came out of this case was that the court is not required to ascertain the views of a child, but rather consider the expression of any views in the evidence, and also in terms of what weight they give to that is discretionary and is on a case by case basis.
Dan: Okay, so there isn’t a miraculous age for a child. They need to be 18. But what happens if their child continues to return from a visit with one of their parents complaining about what happens there? How does a court become aware of this?
Matt: The simplest answer to that question is that the court informs itself by way of a family report produced by a social worker. Sometimes they have degrees in psychology and psychiatry as well. They’ll sit down with the children independently of the parents and that they will discuss with them what their views are, what their wishes are, and the court will inform itself on that basis, because really, the way our system is geared with parents each filing affidavits, it’s very hard to determine who’s telling the truth, and having that independent evidence where the children are interviewed in a setting that is not before either parent, allows them to be able to speak freely and provide that independent evidence that the court is so desperately craving.
Dan: So the starting point, in that case, is for somebody to perhaps reach out and get some legal advice first, before they would even consider making an application? I’m assuming they probably wouldn’t know how to make an application in any case, but probably getting some advice from a lawyer?
Matt: Absolutely. We’d always encourage people to get independent legal advice, and in these types of cases, a lot of people are concerned about the prospect of going to court. It’s a very intimidating process. You don’t have to go to court to get a family report. In fact, most people can do that privately. It’s not something that has a precondition to it that an application to the court be made. But certainly, as lawyers go, we would advise people in circumstances where both parents are essentially butting heads and they’re at significant conflict, that we would obtain a family report and get that independent evidence so that the lawyers are able to assist the parents in coming to some decisions that are quite important about what happens to their children’s living arrangements moving forward post-separation.
Dan: It’s the most paramount concern of the court, isn’t it, or in fact of the whole Family Law Act, and that is that the best interest of the child.
Dan: So Matt, for parents that are listening to this podcast or a parent that is hearing their child making these concerns, they should seek legal advice. Now at Big Law, you offer a free initial consult? Is that the case?
Matt: That’s right, Dan. We’re offering a 20-minute, free consultation to give parties or parents at this point, starting out, some free legal advice and to give them some direction and support moving forward.
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