At What Age Can A Child Refuse To See Their Parent In Australia?
After a divorce or separation, a child may occasionally express a refusal to see one of their parents. In Australia, although a child’s wishes are always taken into consideration when resolving parenting issues, the Family Law Act 1975 does not simply allow a child to make determinations about their own living arrangements, and parenting arrangements are rarely set up so that one parent is denied access to their child.
The Family Law Act considers parenting to be a responsibility, not a right and it does make provision for scenarios where it might be necessary for a child to be separated from a parent, including where a child needs to be protected from physical and psychological harm.
While a person remains a child (i.e. under the age of 18) any parenting issues, including those where a child refuses to see one of their parents, are a matter for both parents in the first instance. If the matter is unable to be resolved privately the court may need to be involved.
What will a court consider when making a decision about which parent a child should live with?
The best interests of the child will always remain paramount as the court makes its decision, as will the child’s right to have a meaningful relationship with both of their parents.
A court will not immediately take a child’s ideas on parenting arrangements into consideration, but they will act in their best interests and will work to establish whether the suggested arrangements are fair for both the children and the parents. In addition to the child’s wishes and level of maturity, the court will consider other factors when assessing parenting arrangements, including:
- the child’s existing relationship with each of their parents and other family members (where relevant);
- how the new parenting arrangement might affect the child and their emotional development;
- how a new parenting arrangement would operate in practice;
- the capacity of each parent to provide for the needs of the child;
- whether the child may be exposed to family violence and any conditions in place precluding a parent from seeing their child.
The court will not necessarily consider a child’s age but will instead assess their maturity and their level of understanding of the issues at hand, in the context of their wishes.
How is a child’s maturity determined by a court?
To determine whether the child’s refusal to see their parent was a view formed on their own and in order to ascertain that child’s maturity level, the court will evaluate:
- an interview with the Independent Children’s Lawyer;
- an official Family Report; and/or
- an expert witness report (if necessary).
The Family Report typically contains interviews with a wide range of family members and is prepared by a trained child psychologist who can provide a professional opinion on the most suitable living arrangements for the child.
When is a child no longer bound by co-parenting arrangements?
Once a child reaches the age of 18 they are able to legally make their own decisions about which parent/s they see and when. Prior to turning 18, children are legally unable to refuse to see a parent following divorce or separation and are bound to any co-parenting arrangements made by their parents or as set out in Consent Orders. Orders of this nature may preclude a parent from seeing their child, in which case it is legal for the child to refuse to see that parent even if they have not yet turned 18.
Family law issues are best resolved when the parties involved work together to co-parent their children, with the best interests of the children at the forefront.
If you are the parent of a child who is refusing to see you or their other parent and you need help navigating the family law system so a fair parenting arrangement can be set up, our experienced and understanding family lawyers in Cairns can assist.