Some years back I acted for a loving father of two children. There was a pretty nasty battle between himself and his ex-partner as to where the two children should be living. Unfortunately, the parents had trouble agreeing on the most basic of issues, mainly because the mother had a very vindictive attitude towards my client and was being as obstructive as she possibly could.
My client was best equipped to be the primary carer for the two children, a girl aged 12 and a boy aged 10. The mother had become tied up with some unsavoury characters and was making some less than ideal lifestyle choices.
The children had been living primarily with the mother since the parties separated however my client was becoming increasingly concerned about the environment the two children were in whilst in the care of their mother. There were some pretty concerning reports coming back through the children and we decided to make an urgent Interim Application to the Court seeking orders that the children spend the majority of the time with the father until a Final Court hearing could be held.
My client succeeded at the Interim Hearing and the Court ordered that the two children reside with my client for the majority of the time. The mother was allowed limited contact only. In those days, I think it is fair to say that there was still a lingering prejudice in favour of the mother being the primary carer of the children. The winds of change had started to blow but we were still up against things a little bit in that regard so it was very pleasing to succeed at the interim hearing so as to provide a safer environment for the children.
Because of the backlog in cases, it was going to be a good 12 month wait until we could get the matter before Court for a Final Hearing. Things went along reasonably smoothly until a few months out from a final hearing date. By this time, my client’s daughter was 13 and she was showing signs of not liking my client’s house rules which were considerably stricter than the loose arrangements the mother provided. The 13-year-old daughter then decided that she was not going to return home to her father and that she wanted to live permanently with her mother. Of course, the mother did nothing to discourage that approach and we found ourselves in a “Mexican stand-off” situation.
Instead of charging back to Court seeking enforcement of the existing Interim Orders my client considered that as his daughter was very strong willed, she was going to "vote with her feet" and live with her mother. My client made the very difficult decision to allow his daughter to live with her mother while his son stayed with him.
So how old do the children need to be before their wishes are taken into account or actually determine the situation? There is no hard or fast rule there. A lot has to do with the maturity of the child and the attitude of the parents however once the child is 13 or 14, it is fair to say that their wishes are relevant. In fact, in cases where you have a strong-willed teenager, it can be pretty difficult because a Court Order is often only as good as the paper it is written on and the respect given to that Order.