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Ask Leon Your Own Question
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 44877
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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I am a clinical Psychotherapist trying to help my client, a

Customer Question

Hi Pearl, I am a clinical Psychotherapist trying to help my client, a grandmother who is concerned about her grandchildren aged 12 and 14 yrs; they live with their biological father, who is by all accounts a poor parent - he gambles excessively, drinks every day, and steals the children presents, and sells them for money to fund his gambling etc.. The father was given custodial care 4 yrs ago, when their mother, who was in hospital(she suffers from Porphyria), wasn't able to attend the hearing. Both children are miserable, and could probably do with some health care i.e dental repairs which the father won't fund, as well as some care to rebuild their self - esteem. Can the chi;loren now choose to live with their mother? Can the Grandmother do anything to help them? The father won't allow any contact with the family, and when he does, it is conditional. P{lease advise, Ned
JA: Because laws vary from place to place, can you tell me what state the property is in?
Customer: Victoria
JA: Has anything been filed or reported?
Customer: Not as yet, the GMo thought she couldn't do anything, - I have given her the details for the family relationship site
JA: Anything else you want the lawyer to know before I connect you?
Customer: The children's attitude to their father has not changed much over the past four years, they have gone from dislike, to hating him with a vengeance, and have not ceased asking to go back to live with their mother
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.

Good Afternoon

My name is ***** ***** I am a NSW Solicitor. Thank you for your question, and will do my best to assist you with your question. Please understand this is not legal advise but a guide to assist you.

The law is not specific about when a child can choose but the age is usually at 14 but is not set in stone.

The grandmother has to make an application in the court to have the children and then the children in that hearing will be heard.

The law is as follows:

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.

The grandmother will have to go to mediation first and if that fails then court unless she believes the childrens safety is in danger then she can go straight to court.

I hope this all makes sense and is of assistance. if there is nothing further

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