As Family courts in Australia highly favor the best interest of the child, parenting orders are heavily discussed. However, if a court mandated parenting order states one week with mom one week with dad (or something along those lines), the other parent has to encourage compliance or risk breaching the order.
There is no Magic Age
A common thought is as a child ages, they can decide who to live with. In Australia, that is not how it works. While the wishes of a child are always considered, they are only one piece in the ‘parenting order’ puzzle. While a child does not simply get to decide routine as they get older, more consideration in courts are made the older they get.
Children: Child’s wishes are considered, but unless there are safety concerns, they rarely influence court decisions in a substantial way.
Preteens: More consideration is given, but courts have to still decipher if these wishes are genuinely their own or influenced by parents or routine.
Teenagers, usually 14 and on: These opinions tend to carry the most weight, especially if they are consistent and well-reasoned.
So, Can a Child Refuse to See a Parent?
- Legally no, a child under 18 cannot legally refuse to see a parent on their own
- While courts consider a child’s wishes, that is only one factor
- Both parents are required to comply with the order
- Persistent refusal may require an application to amend parenting orders
- Safety is always the priority
The Child’s Best Interest Principle
- Wishes of the child (uncomfortable with one parent vs favoring another)
- The age of the child (the older a child gets, the heavier the above wishes may way)
- The maturity of the child and reasoning skills
Since the Family Law Amendment Act of 2023, the courts also take into consideration:
- Which living arrangement promotes safety for the child
- The developmental, cultural, emotional, and psychological needs of the child
- The capacity of each parent to provide for the above stated needs
- The ability for the child to have a meaningful and present relationship with both parents, if it is safe to do so
Safety of the child is of the upmost importance. If there is a history of abuse or neglect, the courts will not require a child to see both parents simply to foster a relationship with both.
If safety is not a concern, once a court makes a decision, both parents are expected to actively support and encourage the child’s relationship with both parties.
Why Children may Refuse to see a Parent
There can be many reasons for refusal to see the other parent, which courts must discuss and take into consideration. Common reasons are:
- Conflict – agreeing to see both parents to appease both parents
- Loyalty Conflict – feeling like by spending time with one parent they are betraying the other
- New relationships – a new partner for one parents, step-siblings, or a new child
- Past trauma – experiences that create anxiety, like harsh discipline, criticism, or neglect
- Alienation – One parent has and voices strong feelings about the other parent, inadvertently influencing the child
- Independence – refusal of imposed schedules
- Disrupted routines – the back and forth may disrupt schooling, routines, and friendships
- Communication breakdown – If the child no longer communicates well with a parent, especially when not visiting them, they may no longer wish to visit them
The parenting orders are subject to change according to a number of factors, including the child’s refusal to see a parent. The initial parenting orders are decided with any concerns on the child’s part in mind.
What Happens if you Let Your Child Stay Home
No parent wants to put their child in distress if they can help it. Constant refusal to see another parents may inspire the other to simply let them stay home. However, if there is a court order in place, letting them stay home may do more harm then good.
If a court discovers there is disregard for court mandates, there may be
- Warnings
- Therapy or counseling recommendations
- Adjustments to parenting orders
- Fines
- Contempt rulings
What Parents Should Do When Refusal Begins
As children age, refusal may become more common. It is important that you remember not to ‘give into the child’ and realize that this may need further legal action, if legal action was taken to begin with. If a child is refusing a court order, it is recommended you:
- Talk with your child and hear their concerns
- Encourage visitation with the other parent
- Avoid criticizing the other parent, even if the child does
- Write down concerns of visitation with the child
- Seek counseling and law advice
- Visit a courthouse to start amending the order, if needed
It is our recommendation for parents or guardians experiencing these complex issues to consult a family lawyer. They can help you better understand the rules and regulations, what you can expect, and help you find answers you need. Call us today at +61 485 872 417 to speak to our experienced family lawyers.
