QLD Family Court Order - Change to Reflect Child's Wishes?

[Katherine Staufenbiel]

Hi. My son is 14 and does not want to stay with his father fortnightly or on holidays. We have family court orders and I have children most of the time (custody of children), but my daughter moved out to live with her father and I see her fortnightly.

My son does not want to see his dad. What is the legal age for a child to say 'no' to staying with a parent? I didn't say 'no' to my daughter staying with her dad. She is 16 and has a job through school. She is wanting the more one on one time as I share my time with three other children, which I can understand.

Do I need to go to court and redo our order and can I do it through Legal Aid? I have no job at present.

 

[Tracy B]

Hi Katherine,

Given that you already have a court order, the best option is to ask court for a variation of the court order taking into account your son's views. There is no set legal age when a child to say "no". The court will do an assessment on (i) whether they believe the child is mature enough and informed enough to express his own wishes; and (ii) whether the wish expressed stems from the child's own volition and not coached or improperly influenced by a parent or some other person. A child at 14 will most likely be considered by court to be of age to express their own view and opinions on the matter. However, you need to persuade the court that your son's wish to not see his father is not influenced by your negative views (if any) of the father.

The court will then place heavy weight on your son's wishes but the ultimate decision will be a balance of all factors, including the father's behaviour and conduct since the first court order, the reasons for your son's wishes, the default belief of the court that a child is best raised when in contact with both parents. Ultimately, the court's decision will be what it considers to be in your son's best interests, taking into consideration your son's own wishes and other factors.