Does your mature child have a say about where they live?
Children often express their wishes about which parent they want to live with. The consideration that is given to a child’s wishes depends on a range of factors, but age is usually the first question. In a recent case the court considered the wishes of a 15 year old.
In a previous article we looked at the weight the Court gives to children’s views. We concluded that the Court is likely to give significant weight the Court gives to children’s views.
In a recent case the court expressed the same view. However, the Court highlighted that a mature child’s views can be weighed against other relevant factors, including:
- Any influence or pressure on the child by either parent;
- The circumstances surrounding the time the child expresses their views;
- Any uncertainty in the child’s views;
- Matters relevant to the child’s wellbeing, including any history of family violence; and
- The benefit to the child of implementing their views versus any detriment to the child of further litigation.
In the case, there had been extensive litigation regarding the parenting arrangements for the child from when the child was three years of age. The parents had different positions about who the child wanted to live with, however the Family Consultant who interviewed the child when he was eight years old formed the view that the child had a fear of his father’s reaction or disapproval and so would agree with the father’s views. At this stage the parents agreed that the child would live the mother in Canberra and spend weekends and holiday time with the father in Melbourne and the Court made an order to that effect.
When the child was 15 years of age the father filed an application in the Court seeking that the child live with him in Melbourne because of alleged repeated requests by the child. In order for the Court to change the ordered parenting arrangement the father had to prove there had been a “significant change in circumstances”. The father argued the child’s age and his strongly held views about living with the father was one factor establishing a significant change in circumstances. The mother agreed that the child had said on two occasions that he wanted to live with his father in Melbourne, however the child expressed those wishes at time when there was disharmony between the child, mother and step-father. The mother also said that she believed the father was putting pressure on the child.
The Court found that the age of the child and his expression of some desire to live with the father represented a “significant change in circumstances”. However, the Court was not satisfied that the further litigation required to change the parenting arrangements was warranted due to the history of pressure on the child by the father and the other relevant factors (identified above). The court noted that the potential benefit to be gained by the child from the litigation, being the opportunity to live with the father for the remainder of his childhood, was significantly outweighed by the likely detriment to the child caused by further litigation, including the disruption to the child at an important time in his education.
So, does your mature child have a say in where they live? The short answer is yes, however the Court will consider the child’s wishes in light of other relevant factors as well.
At Michael Lynch Family Lawyers we understand that parenting matters can be difficult and the outcome depends on the circumstances of the individual case. If you would like to discuss your personal circumstance, please contact our office by calling (07) 3221 4300 or emailing to [email protected] to arrange a fixed-cost no-obligation initial consultation with one of our experience family lawyers.
