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Deborah Awyzio
Deborah Awyzio, Solicitor
Category: Australia Law
Satisfied Customers: 863
Experience:  Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience
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Hi my son, who turns 15 next week, would love to come to live

Customer Question

Hi my son, who turns 15 next week, would love to come to live with us 1 week and then his mum's house the next week.
We have been through this a couple of times before when he was around 11 - 13years of age. His mum always makes him feel guilty. At moment we have him every second weekend and one week during the week.
His mum makes the point that his much younger sisters (2) from her new marriage will get too upset.
My son and I are extremely close and would like your advise as to which way to go?
many thanks
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Morning,

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

At the age of 15 your son is able to make his own decisions of where he wants to stay and if the matter was to go to court to court would consider his request.

The following information is about the child's right to choose and what the courts have done over the years:

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.

At this point you can consider going back to mediation without solicitors, and putting your case and your son's case to his mother and working out a way that your son can start spending more time with you and easing his sister into understanding that he will not be at home as much.

I would suggest you not to her that from the following week he will start spending one week with you on week with her but starts to increase the dates so that it is easier on the younger child.

You will need to explain this to your son is well. If the mother refuses then your only option is to take the matter to court and the court will decide in your son's favour once it has the evidence.

You should contact your closest family relationship centre. This is a free service provided by the Federal Government. Their website is

http://www.familyrelationships.gov.au

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 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


But you should attend the mediation and try and work it out and you do not meet solicitors involved at this point.


The mother should understand that trying to make some feel guilty is not in the child's best interests and if she does this the child will ever right to file his own evidence to the children's lawyer and the court will read and take it into consideration.


Is there anything else I can assist you with?

 

 

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Deborah Awyzio
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Bachelor of Laws (QUT), BIT (QUT), Family Law Accredited Specialist, over 12 years experience