In Australia, children have the right to spend time with their parents and form and maintain a meaningful relationship.  Additionally, children must also be protected from harm. Courts will account for when it is not within a child’s best interests to spend time with a parent. However, this can become an issue when a child doesn't want to see the other parent.

Time with each parent

The Court will make a determination in each matter based upon the circumstances of the case and what is in the child’s best interests. As such, there is no law or precedent which requires a child to spend equal time with both parents. It is very rare for the Court to make an Order that a child spend no time with a parent. Even in cases involving family violence the Court is likely to order supervised time with the other parent.

What does the Court consider?

When deciding on a parenting arrangement the Court considers multiple factors including:  Firstly, the relationship between the child and the parents.Secondly, any possible effect on the child of the parenting arrangement.Thirdly, the practical difficulty of the child spending time with both parents.Fourthly, the parent’s capacity to meet the needs of the child.Finally,  the child’s wishes.

Their wishes: What is a child doesn't want to see the other parent?

The Court will take into consideration the child’s wishes based upon their age, level of maturity and whether they can make an informed decision about their situation or whether a parent has influenced their choice. If a child is older, it is likely they will be able to make a definte decision about where they want to spend time. But, legally, they cannot make a decision to no longer spend time with one parent.  There is no specific age for a child to be considered ‘old enough’ to have a say in their parenting arrangement. Rather the Court looks at the child’s maturity and reasoning. When looking at their maturity and reasoning, the Court may rely on expert advice from a counsellor, social worker or psychologist.  As mentioned above, no, a child cannot legally choose to live with one parent over the other. However, if they are older and have chosen not to see a parent despite the Court’s parental arrangement it can be extremely difficult to enforce. Whilst parents should encourage and foster a relationship if an older child refuses to see a parent, the parents should work together with the child to come up with solutions and identify any concerns the child may have.

New South Lawyers’ communications are intended to provide commentary and general information. To that end, they should not be relied upon as legal advice. Accordingly, they should seek formal legal advice for matters of interest that arise from this communication.

To find out more, chat with a member of New South Lawyers' Family Law Team today.