LawTalk Blog

Does my child have to spend time with my ex?

family and children's issues

We often get asked whether a Court will make a child spend time with the other parent in circumstances where that child has said that they do not want to.

Firstly, as we always point out in these blogs, the most important consideration in Family Law regarding children is the best interests of the child. This means that the wishes of either parent will not be put before the best interests of the child. 

It is important to note that one of the primary considerations of the Family Law Act is the benefit of the child having a meaningful relationship with both the child's parents. The other is to protect a child from physical or psychological harm. We have already blogged about the need to protect the child from physical or psychological harm and the fact that the Court can make orders whereby a child does not have contact with a parent in order to protect that child from abuse or violence.

In today's blog we focus on the situation where there are no allegations of abuse or violence and the child simply does not want to spend time with the other parent.

Whilst one of the primary considerations of the law is the benefit of the child having a meaningful relationship with both of the child's parents, there is a number of other considerations as well, in particular any views expressed by the child. The importance given to those views depends on the child's maturity and level of understanding. What this means in reality is that the views of older children are given a greater importance than those of a younger child. In practice it is usually from about the age of 12 that those views are given such an importance that the child would not be forced to see a parent.

If a younger child has a very strong view against seeing a parent, that will also be given significant importance.

It is therefore not a case of simply asking the child what parent they wish to live with. The outcome reached comes from a far more detailed assessment of all of the relevant factors.

For example, a child that wants to live with a parent because they let them stay up all night, eat junk food and smoke cigarettes is unlikely to be the best choice of living arrangements for the child. If the child has a good relationship with the other parent and that parent has capacity to provide a better level of care, it is more likely that that parent would be successful in Court with having the child live with them.

In some cases, the child's views can be so extreme that they simply refuse to spend any time with another parent. In these cases a Court is unlikely to force the child to simply spend time with the other parent. What the Court will want to do is find out what the child's views are, the cause of those views and whether there is any way that the relationship with the other parent can be repaired.

The child itself does not give evidence in the Court or speak to the judicial officer. The Court finds out the views of the child in several ways, such as:

  1. Engaging a Family Consultant to prepare a family report after speaking with the parties and the child or children. This report is then filed in Court and given to the parties.
  2. Appointing an Independent Children's Lawyer who may speak to the child or children.

After receipt of the family report and any consultation with an Independent Children's Lawyer it may be that the parent and the child may be required to attend counselling, first individually and then together in order to try and re-establish the connection and relationship. Alternatively, in other cases it may well be that the views of the child are so entrenched and taking into account the age of the child, that it is determined not to take any steps and to make any time the child wishes to spend with the other party subject to their wishes.

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Get in touch with today's blog writer:
Ryan Thomas

Partner in Family Law

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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