SA How Much Weight Does Family Court Give Child's Opinion?

[Tina028]

My ex and I have 3 children together. They are now 13,10 and 7. Ever since he left there has always been dramas. I've gone through mediation, community justice centre, legal aid and family court to get orders for the kids so they can have structure and routine.

The ex moved 1 1/2 hours away when he remarried and things are going from bad to worse when deciding what's best for the kids. The family court orders that we have now only specifies that the kids live with me and see him every other weekend, also school holidays , Christmas, Mothers Day/Fathers Day, are in the order. He has always been adamant in all mediations, legal documents that he didn't want them longer in the holidays or facilitate their activities because he wanted to spend quality time with the new wife as well.

I've now got the issue of the 13-year-old saying he wants to live with his dad when he starts high school. His dad has always worked away from home, either driving trucks or in the mines, so he has never helped with any of his schooling, etc.

I've got him enroled in a private school down the road that will benefit him as he has always struggled with his language and comprehension. He will be put in a class that has a smaller class size, 2 teachers and extra lessons in English and maths to bring him up to standard. He was already enroled in this school back in 2008 but ex-husband and I decided to defer until high school.

He refused to sign the new forms, so I'm funding the school myself.

The issue I have is my son now says he wants to live with his dad, but doesn't give a reason why and his dad has never done anything to help him with his education in the past. He doesn't facilitate any of the kids extra curricular activities and the kids have often come back to me saying stuff when we have conversations that they are not supposed to tell me stuff and that was supposed to be a secret.

How much of the child's opinion is considered if it went to family court if the dad hasn't done anything to help with his education or activities?

 

[AllForHer]

What's the kids' attendance record like for schooling? When they're with dad, do they attend school every day?

Did dad consent to the new school, but just not to the fees, or was he opposed to the choice of school, as well?

What's dad's position on the child living with him?

 

[Tina028]

The kids only go to their dad's every 2nd weekend, so he has not been involved in their schooling because he moved 1 1/2 hours away.

When we were together we enroled him into this private school but chose to defer. I've given him the chance to sign new paperwork but he refused.He doesn't have an issue with the school itself as its a good school. He just doesn't want son to go to high school here with me.

He has told all 3 of our kids ages ago they are to go to high school with him and have got to have a good reason as to why they shouldn't.

 

[sammy01]

I'm gonna be blunt. So let's take out all the opinion from your post.. What is left: Kid wants to live with dad

Let me give you an opinion. So dad works away - mines, etc., but that makes good money and hence, he pays child support and that money contributes towards the cost of the child. Now school fees are not mandatory and the child support contributes to the costs. You chose to send him to the the private school, not him, so why should he pay?

To answer your question, the courts will consider a 13-year-old's point of view. As kids get older, their opinion is given more weight. So a 16-year-old is more likely to get their way...

So what to do.... Look I reckon I'm gonna be in that scenario in a few years. I'm going to let the kids go live with their other parent and I'm going to cry myself to sleep when it happens. But the kids will also know they are a phone call away and I will come and get them without any 'I told you so....'

You could drag this through court, but right now I reckon you want to ask yourself, is dad gonna agree to take the kid? By the sounds of things, probably not.

 

[Tina028]

The dad is no longer at the mines and is currently not paying child support. I never said the father should pay for the fees. I've actually got the money already saved for him to go.

The father has never put the kids best interest first. I had to fight for 4 years through many legal avenues just for him to have them 5 nights in the holidays . He has always said he needs to spend quality time with the new wife.

My question was about the courts listening to our son considering the father has never put the kids or their education first. It's always been about him and the new wife but the father has told him he is to live there.

 

[AllForHer]

Not a great deal of new information provided here, so I'll do the best I can with what I've been given.

What weight is given to a child's opinion? At 13 years of age, the Court is probably going to give it a significant amount of weight, but it won't be the only factor taken into consideration by the Court. The other factors of s 60CC of the Family Law Act will still apply.

One of those factors is certainly 'the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents', which is where the complaint about the father's involvement in the children's education would come into play.

However, the issue is that your version of involvement in the children's education probably won't match up with the Court's version of involvement in the children's education.

Basically, unless you can show that dad is irresponsible with their education - like if they've had a lot of late arrivals or absences marked against their attendance records as a result of dad's actions - then he's about as involved as he a) needs to be to ensure they're still doing well in school; b) can be when he only sees them every second weekend and holidays; and c) has been allowed to be when you have acted unilaterally to enrol the child in a school that the father has not agreed to. Unfortunately, 'giving dad the opportunity to sign paperwork' is not 'a genuine effort to consult and reach agreement' about the choice of schooling as is an obligation under shared parental responsibility.

In short, I don't think the assertion that dad is not involved in the child's education is going to be terribly influential on the Court (though the issue of enroling the child without the agreement of the father probably will work in the father's favour).

What you do have going for you is that you already have orders, and orders are not that easy to change, so unless dad is willing to pursue this matter to Court, he is going to have to do what the orders tell him to.

However, regardless of the above, try and focus on your son, rather than the orders, the Court and your ex. Most kids in that age group are starting to spend more time with friends than with family, so for him to want to relocate 1.5 hours away to a new school, a new home and a new community is probably a pretty significant ask. Is your son a mature sort of kid? Do you reckon he's making an informed request, or do you think he just wants, for example, to live in a home with less rules and more freedoms? Maybe he's looking for more time to do some father-son bonding with the most important male role model in his life? It would make sense - he is on the verge of becoming a young man, after all.

If you want a more amicable option for discussing it with dad, consider a child-inclusive conference with Relationships Australia. A professional will talk to the child first and then present the child's views to both parents before they try and sort out the issues, so both parents are aware of the child's feelings when they negotiate an outcome.

 

[Tina028]

The ex husband had agreed for the son to go to the private school years ago when we were together and I have the enrolment documents from the school with both our signatures on there from 2008. We just chose to defer the enrolment.

The school had just requested that we resign updated forms now we weren't together. It was then that he refused to sign them as he said that now we're not together he's not resigning them. It was good enough for our son to attend back then but now he had other ideas. I've tried for years to get him to spend more time with the kids and get more involved with extra curricular activities but he just sees it as his time.

 

[AllForHer]

Obviously, the situation was very different in 2008. I wouldn't encourage telling the Court that consent from 2008 equates to consultation and consent eight years later, because plainly, it doesn't.

Also, it is his time. Did you consult with dad when you enroled the kids in these extra-curricular activities? Did he agree to facilitate their attendance during his time with them? Or were they enroled unilaterally and his compliance was simply expected?

 

[Tina028]

The kids extra curricular activities were enroled when we were together and he did start to facilitate when he first moved out. It was when he moved he decided not to take them. The kids are used to not going when they are with him. Even though I don't agree with him not taking them as its for their best interest it doesn't bother me as much as it used to.

 

[AllForHer]

Well, that's understandable. He does only see them every second weekend, it's fair to expect he will spend that time parenting them as he sees fit, rather than shuttling them three hours round trip for extra-curricular activities. Between attending extra-curricular activities and having a meaningful relationship with their dad, what's in their best interests is having a meaningful relationship with their dad.

In any case, you can't expect everything to work the same as it did when you were together. Apply logic and be flexible. I think you should consider a child-inclusive conference. I think your son is of an age where he is going to want his voice heard, and the less his voice is heard, the more inclined he will be to vote with his feet.