Are you wondering at what age or in what circumstances children can make a choice in living arrangement during a divorce or separation?
The family law prioritises the best interests of the child when determining living arrangements after a separation or divorce. One important aspect of this process is considering the child’s wishes. Here’s a detailed look at how a child’s choice impacts family law decisions in NSW.
Understanding the Child’s Perspective
Age and Maturity:
- The court considers the age and maturity of the child when evaluating their preferences. While there is no specific age at which a child’s wishes become decisive, older and more mature children’s preferences are given greater weight.
Best Interests of the Child:
- The primary consideration is the child’s best interests, which includes their emotional, psychological, and physical wellbeing. The child’s wishes are one of many factors the Court assesses to determine what arrangement best serves these interests.
How the Child’s Views Are Gathered
Family Reports:
- A family consultant, psychologist, or social worker may prepare a family report. This report includes observations and interviews with the child, parents, and other relevant individuals to provide the Court with a comprehensive view of the child’s situation and preferences.
Independent Children’s Lawyer (ICL):
- In some cases, the court appoints an Independent Children’s Lawyer to represent the child’s interests. The ICL ensures the child’s views are heard and considered, providing an independent perspective on what arrangements would be in the child’s best interests.
Factors Influencing Court Decisions
Parental Influence:
- The court examines whether the child’s views have been influenced by one parent or other external factors. Genuine and independently formed wishes are given more credence.
Sibling Relationships:
- Maintaining sibling relationships is often a significant factor. The Court considers the impact of separating siblings and strives to keep them together whenever possible.
Stability and Continuity:
- The Court prioritises arrangements that provide stability and continuity in the child’s life. This includes considering the child’s current living situation, schooling, and social connections.
Legal Framework
Family Law Act 1975:
- The Family Law Act provides the legal framework for family law matters in Australia, including NSW. It emphasises the best interests of the child as the paramount consideration.
Section 60CC Factors:
- Section 60CC of the Family Law Act outlines the factors the court must consider when determining what is in the child’s best interests. This includes the child’s views, their relationship with each parent, and the capacity of each parent to provide for the child’s needs.
Practical Tips for Parents
Encourage Open Communication:
- Parents should foster an environment where children feel safe to express their views without fear of repercussions or pressure.
Seek Professional Advice:
- Engaging with family law professionals, including the TDP Family Law team, can help parents understand the legal process and effectively support their child.
Focus on the Child’s Needs:
- Parents should prioritise the child’s needs and wellbeing over their own preferences. Collaborative and amicable discussions about living arrangements are beneficial for the child’s emotional health.
While a child’s choice is an important factor in determining living arrangements, it is one of many considerations the court evaluates to ensure the best outcome for the child. Understanding the legal framework and seeking appropriate support can help parents navigate this complex aspect of family law in NSW.
To have experience on your side, talk to out TDP family law team today. Book a free 15-minute case call via our website here.
