Australia: What age can a child refuse to see a parent in Australia?

What age can a child refuse to see a parent in Australia - the answer to this question is that the Australian courts will look at the maturity of a child and give weight to their opinion accordingly. Normally this means a child should be around 12 years old for their view to be considered by the court.

In Australia, there is no minimum age which a child can legally refuse to see a parent following divorce or separation. Of course, once children of divorce reach the age of 18 years they can make their own decisions about where they live or which parent they want to spend time with.

Section 60CC of the Family Law Act, 1975 outlines various factors that the court will consider when determining parenting arrangements after divorce and separation. A child's wishes are specifically mentioned under subsection 60CC(3)(a) of the Family Law Act.

That subsection acknowledges the importance of a child's preferences which could include instances where a child may refuse to see a parent. However, a child's wishes are not the primary elements that the courts will rely upon in parenting matters.

Under section 60CC(3)(a) of the the Family Law Act, 1975, the courts focus on two key areas being:

• The potential benefits of a child enjoying a meaningful relationship with both parents; and
• The need to ensure children are protected from both physical and psychological harm.

Even in cases where a child might suddenly refuse to see a parent, the Australian court system does not generally favour setting up a parenting arrangement where one parent is denied access to their child simply on that basis.

In this article, we look at the legal considerations around a child's refusal to see a parent following divorce and what steps parents can take to ensure that a healthy co-parenting arrangement is in place to ensure the best interests of all parties.

What Age Can a Child Refuse To See a Parent in Australia?

The courts, when faced with a situation where a child might refuse to see a parent, may initially consult Section 60CC (3)(a) of the Family Law Act, 1975 which says that:

The family court system in Australia under Section 60CC also looks at other factors when evaluating parenting arrangements such as:

• The nature of the child's relationship with each parent and other relevant family members such as grandparents.
• The possible effect on the child's emotional development of any proposed new parenting arrangements.
• The logistics of the child being able to spend time with and communicate with each parent.
• The parents' capacity to effectively meet the child's needs.
• The child's wishes and their level of maturity.
• The presence of any family violence orders and circumstances and conditions around that.

Under Australian family law, courts will be focusing on the best interests of the child. This means, they are not automatically listening to what a child says when they are determining what age can a child refuse to see a parent.

When the court is considering a child's maturity levels and their stated intentions about which parent they want to live with, it's important to mention that the child's age will not necessarily be as relevant as the perceived level of authenticity and truth shown when the child expresses their views (whether to the Independent Children's Lawyer or the appointed Family Court consultants or report writers).

There have been times where the courts have awarded more weight to the wishes of a 12 year old maturely expressing their wishes compared to a 17 year old who expresses a refusal to see a parent based on more flimsy (and possibly materialistic) grounds.

The court will make it's determination based on an assessment of the child's maturity, their level of understanding, whether that wish is sensible and whether or not the child may have been influenced by one of the parents. The presence of parental alienation can be a powerful contributor to a child who may refuse to see a parent and courts will consider that when evaluating the family dynamics.

How do courts determine a child's maturity in parenting proceedings?

In parenting proceedings, the courts will evaluate a child's maturity and their views on parenting arrangements usually after an interview with court consultants or by engaging a family court report writer or a family consultant. Family court report writers are psychologists or social workers who will interview the whole family and deliver a report to the court with their recommendations.

Children are not usually expected to give evidence in court - their views are communicated to the family court report writer or family consultant who later prepares a list of recommendations.

The family court report will include interviews with all relevant family members - including the child, siblings, grandparents, step-parents and step-siblings (if appropriate). The completed report will be submitted to the court with recommendations about the best parenting arrangements going forward. Those parenting arrangements may be at odds with the child's wishes but the court's final orders are legally binding.

The court will evaluate the children's wishes using the following three tools:

1. The Family Consultant or Family Court Report;
2. A single expert witness report if required; or
3. An interview with the Independent Children's Lawyer.

In making's its decision, the court will focus on the best interests of the child and this includes the child's right to have a meaningful relationship with both parents which is set out in Section 61DA of the Family Law Act.

At what age can a child legally decide which parent to live with?

Children under 18 cannot legally refuse to see a parent following divorce or separation or in general.

Children under 18 will be bound to the co-parenting arrangements made by their parents, set out in Consent Orders, and endorsed by the courts. Once the child has reached the age of 18, they can (as adults) make their own choices without reference to family court proceedings.

In practice, however, if a minor child is refusing to spend time with a parent, it can also be difficult to enforce that in a practical sense. This is particularly the case if the child or children are older (preteens or teens) and determined to oppose court-mandated parenting arrangements. This is where good co-parenting is crucial - where children can see that both parties, even though no longer married, are still presenting a united front.

If a divorce is acrimonious, it's more likely that one or both parents may be influencing the child to reject the other parent. It's not unusual to see parental alienation in custody battles. In severe cases of parental alienation, a previously happy, loving child can rapidly transform into an angry, oppositional child who will refuse to see a parent.

Healthy co-parenting arrangements are not just ones where there is open communication - cooperative and self-aware divorced parents are generally more likely to avoid any attempt to influence a child to reject the other parent.

This because healthy divorced parents understand that parental alienation is damaging to children. Healthy co-parenting is where both parties will enthusiastically encourage the child to have equal parenting time with each parent and where the views of both the parents and the children are given equal validity.

The Family Law Act 1975 considers parenting to be a responsibility rather than a right. This means that parents have certain power and authority over their children's lives, but this goes hand in hand with their duties and responsibilities as parents.

Making healthy parenting arrangements using the courts

The best outcomes in family law proceedings always occur when both parents are committed to working together to co-parent their children. That way, we will not have to ask the question of what age can a child refuse to see a parent - and instead allow the parents to make that determination.

In a genuine shared co-parenting arrangement, both parents will be closely working together and communicating about all aspects of each child's life and always checking with the other parent before making any significant decisions.

Legally, a child under the age of eighteen doesn't have an automatic legal right to refuse to see a parent after divorce.

Decisions about parenting arrangements will be made either privately by parents agreeing on what is best for their children or by the courts after evaluating the family dynamic.

The courts consider the factors cited above as well as advice received from family court report writers and Independent Children's Lawyers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.