Changing Consent Orders - Children Want Change

[Dadoftwo]

My children would like to go week by week (custody of children) and have both mentioned this several times since my ex-wife and I separated in 2012. They are 13 and 11 however the family court orders were only put in place August 2013 with a 9/5 arrangement. When I tried to initiate mediation again in January, my ex just refused to go. The contact there raised concern at the fact it was a recent order when I said I wanted to take it to court as a next step.

How much of a problem is the fact that the order is recent?

Laws surrounding the age of a child allowed to make up their own mind about access are vague to say the least. It seems there is no number written down. My lawyer at the time used the term “They’re almost old enough to let their shoes do the talking” and avoided a number. My son has told me when he’s 12 he’ll be making the change. Is this possible?

If that is the case, it would be better for my children if I just wait it out until he is 12 , otherwise I should try and get it changed asap as long as it's not going to just get thrown out because it's recent.

 

[CathL]

Hi Dadoftwo,
It seems that your lawyer's response reflects the reality - that there's no set age and its vague as to the age that a child is deemed mature and having a well founded opinion about their parenting. I've had a look and have not found something specific - it depends on the maturity and views of the child and their best interests. Legal Aid WA has a 'Can Children Speak in the Family Court' page that says amongst other things:

How old do my children have to be before the Court will go along with their views?
The Court does not have to make parenting orders based on the children's views, even if the children are almost of adult age. It usually depends on the child’s maturity and what has influenced their views as to how much notice the Court will take of their views.
Depending on the circumstances and the reasons for the child’s views, the Court may be reluctant to make orders requiring a child who is almost 18 to do something they do not want to do. It may also not be useful to start proceedings for orders about a child who is close to adult age because the delay in receiving a final decision from the Court may mean the child is 18 by the time you get to trial and the Court cannot make orders about children who have reached 18 years of age.
Very young children are unlikely to be able to express well-founded views about their living arrangements and other parenting issues. If a child has a very strongly-held view about something the Court is more likely to take notice, but the Court will still want to find out the reasons for the child’s views and make sure that they are good reasons.

The Family Court of Australia ‘First Instance Judgements’ page has the transcripts of cases - some of which show where the wishes of children have held weight and where children were considered too young to have views.

I understand that you can apply to change the order if you can show that there has been a significant change of circumstances that makes a change necessary (in the best interests of the child). However, the leading case on changing family law court orders set the precedent that parties should not lightly entertain an application [to change an order] ... To do so would invite endless litigation for change is an ever present factor in human affairs … there must be evidence of a significant change in circumstances.

Have a look at the Family Law Courts ‘Applying to change an existing order’ page. Until it has been changed, the existing order should be complied with. See the ‘Complying with orders about children’ page.

Also have a look at the Legal Aid Victoria ‘How to change your family law court order’ fact sheet.
You can ask the court to vary the orders if there has been a significant change in circumstances since
the orders were made. Some of the examples of a significant change in circumstances are where:

• the mental or physical health of one party has changed and it now affects the child’s safety
• a child is now old enough to express an opinion about the parenting orders and the child’s view is that the orders are not in their best interests and this is obvious from the child’s extreme behaviours such as self-harming or running away.

Get legal advice if you want to change the orders because of a significant change in circumstances.

Hope that helps.