Families and the Law

Disclaimer: The material in this factsheet is a general guide only. It is not legal advice. For legal advice about your own particular situation we encourage you to call the Free Legal Helpline on 1300 366 424. The legal information was correct at the time of publishing (April 2016), however may change without notice.

 

Acknowledgments:

The Legal Services Commission gratefully acknowledges the assistance of the Victorian Legal Aid and the National Children and Youth Legal Centre in allowing the Legal Services Commission of South Australia to use and adapt existing content.
 

Family breakdowns and the law

My parents have split. What will happen to me?

If your parents are splitting up, or have split up, things can be pretty tough and confusing. Your parents might need to work things out like where you will live, who you will live with and what time you will spend with each parent and your brothers and sisters. The law says your best interests are the most important thing. Working out what is in your best interests can be quite hard. It doesn’t necessarily mean you will get what you want, although the court will always take your choice into account, as well as the needs of other family members. Each family is unique so there are many different arrangements that can be made.

As a general rule the law says:

  • It is in your best interests to have a relationship and spend time with each of your parents, and your brothers and sisters (how and when this happens depends on your family’s circumstances);
  • Your parents are responsible for your financial support, as far as they possibly can be.

How old do I have to be to decide who I want to live with?

There is no rule about how old you have to be to choose who you want to live with. You can have an opinion at any age.

If your parents are going to agree on who you will live with, then it is important to try and explain how you feel.  You may like to ask another family member or older friend to help you talk with your parents.  It is a good idea to talk to your parents about your wishes so that they know what you are feeling.  Often arrangements for children will be made without having to go to the court, though agreement of the parents or through mediation (see the Law Handbook for more information on this).

If the Court is deciding where you will live, the Judge will take into account your views. However, they will also consider a lot of other things and try and figure out what is best for you based on all of the information that they have.

In most but not all cases, the older you get, the more likely it is that the Judge will agree with your views on what is best for you.  For example, if you are an older, mature teenager who is capable of looking after yourself, it is more likely that the judge will make a decision based on your wishes. However, this will always depend on your family circumstances and especially whether you are going to be safe.

What can I expect if my parents go to court?

If your parents go to court to sort things out, the court will want to know if they have made suitable arrangements for you. The court may ask that you talk to a counsellor or other professional about what you want, and how you’re feeling about the situation.

See our section in the Law Handbook on Parenting Orders for more information, including on the rights of children to apply for orders.
 

How can I have a say in what happens if my parents go to court?

During the court process, you might have a chance to explain how you feel and what you think about your family.

You may meet lots of different people as your family goes through the court process. These might include a family consultant, social workers, police and medical professionals.

Some of these people will make reports to the court about you or your family. If you have an opinion about where you would like to live or about any other decisions affecting you, you can discuss them with these people and they might be able to tell the judge what you think.
 

What does an independent children’s lawyer do?

A family law court might ask an independent children’s lawyer to look into your situation and try to find out what’s best for you, and then work towards this.

To do this the lawyer will usually talk to you and other people involved in your life, like your teacher or doctor. They will listen to what you want and make sure the court knows this, but the lawyer or court may not follow your views. The independent children’s lawyer should also explain how the system works and the choices the court might have to make about your future. You can ask the independent children’s lawyer any questions you might have about the court case.
 

What happens if a child is being abused or neglected?

Child abuse or neglect includes things like physical, sexual and emotional abuse. If something like this has happened to you or to another young person, or if you’re worried that it will, make sure you tell someone you trust, or call the police (131 444), Kids Helpline (1800 55 1800), or the Child Abuse Report Line (13 14 78).

Some people – like doctors, nurses, teachers, principals and police – must tell the Child Abuse Report Line if they have a suspicion on reasonable grounds that a young person is being sexually or physically abused, neglected.

Families SA may take action to try to protect you from neglect or abuse including:

  • working with you and your family to sort things out
  • involving you in making decisions
  • going to the Youth Court.

Sometimes the department might ask you or a family member to live somewhere else or they may put restrictions on you or a family member. If you are uncertain or unhappy with something the department wants, you can ring the Legal Services Commission on our free Legal Help Line 1300 366 424.

Children and young people have the right to have their wishes listened to at all times.

The Youth Court can make decisions about where you live, who you see and how often you can see them. In some very difficult situations it may be that there is a Care and Protection Order  which means that decisions about your care are not made by your parents.  These can last for shorter periods of time or until you are 18 years old.

See more information about these orders on the Law Handbook.




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