Until 1974, children had ‘the right’ to choose which parent they lived with at age 14. Since the Family Law Act came into effect in 1975, there has been no hard and fast rule.
The Family Court now looks at a number of factors in deciding with which parent a child shall live.
There is a presumption that it is in the interests of a child to spend as much time as possible with both parents. That is called a “rebuttable presumption” in that it is a starting point, but many factors are considered before the Court will make such an Order.
The wishes of the child are important. Equally important are the reasons for the Child stating those wishes, and also considerations such as the Child’s age, maturity and level of understanding. There is little point asking a 4 year old, no matter how bright the parents may think the child is. At the other end of the scale, the Court generally looks dimly on a Parent who demands a 16 year old be told by the Court with whom they shall live.
There is no magical age. The 8 year old should normally be asked, however the Court is not bound by what they say. It is a factor to be weighed-up. A 14-15 year old will normally have their wishes granted, so long as they are expressed to be for the appropriate reasons.
One case allowed 2 children (8 and 10 years old - sister & brother) to decide that they wanted to stop living with one parent and start living with the other because the other parent provided proper accommodation, took them to school, put shoes on their feet, and fed them as one would expect to feed children that age. Very basic needs which were not being met adequately by the first parent. At the other end of the scale, a 16 year old child with a significant mental impairment will be asked, however if the Court is not convinced that their wishes are actually in their best interests, other factors will take priority.
The Court specifically looks at the attitude of each parent towards the task of parenting, whether the parents are able to provide adequately for the child and whether a parent will actively promote the relationship between the Child and the other parent. The Court prefers not to separate Children where possible. Violence, drug and alcohol abuse are also considered.
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You should contact your closest family relationship centre. This is a free service provided by the Federal Government. Their website is
You can find your closest one on there.
The web-site also have alot of useful information and links to assist you.
Before going to court you must obtain a certificate from a family dispute resolution practitioner. You get this through the free service provided at the family relationship centres.
If you need to go to court then you can will need to file an application in the Family Court or the Federal Magistrates Court
http://www.familycourt.gov.au and http://www.fmc.gov.au
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