Question of the month

Family Law and Residency

Question

I am living with my dad and my sister. My mum and dad split up and we had to go and live with my dad. There are court orders that say we have to live there. It was a mistake to make us stay with dad. Dad has moved my sister and I to a different state to live. Mum has to come over so she can see me and my sister every second weekend. I don't want to live with my dad. I want to live with mum. I have told my dad and he says no. He gets angry a lot. I'm scared of dad and so is my sister. We try and tell him how we want it but we can't talk to him. Mum has no money to go to court to have us returned. Please help us.

Answer

As a general rule the law says it is in a child's best interest to have contact with both parents. The family court can make a residence order which says where and with whom, you have to live.

The role of a child representative

An Independent Children's Lawyer is a lawyer appointed by the court. Their role is to help the court decide on what is in the best interest of a child. There is no age at which an Independent Children's Lawyer is appointed. Before the case goes to court, the Independent Children's Lawyer will collect information about the case. This will include talking to people like teachers, doctors, psychologists or counsellors. The Independent Children's Lawyer should tell the judge what you want, but they may tell the judge that you should live with a parent who you say you do not want to live with. The Independent Children's Lawyer does NOT act on the child's instructions. They tell the judge what they consider is in the best interests of a child.

If you want to live with your mother you should tell her that and also tell her she should see a lawyer for advice as she can make an application to the court for an order that you live with her. She should also make enquiries to Victoria Legal Aid (ph: (03) 9269 0234) regarding eligibility for legal assistance.

Please note the following general information regarding young people under 18 wanting to leave home:

In Victoria you can leave home when you are 17.

You should consider where you will live, how you will earn enough money to live, and whether there is someone available to you who can act as a guardian (for instance is you need a school or other form signed by a guardian)

If you are under 17 and someone thinks you are at risk of suffering significant harm, they can report this to the Department of Human Services. Some people must report if they think you are at risk. If the department is concerned for your safety, they can ask the Family Division of the Children's Court to make an order to protect you. The order can say where and who you will live with.

The Department is unlikely to take you to court if you:

If there are serious problems at home and you don't want to go back or stay at home, it is unlikely that you will be forced to. The court may order that you live somewhere else, such as with another family or in a hostel. So if you have somewhere 'safe' to live and are supported financially your parents would not be able to force you to go back home.

Contacts

If you are having problems with your parents you can get free advice from Reconnect (ph: (03) 9611 2434) who offer support to young people aged 12-18 who are having trouble at home, or who have left home. They can then refer you to the local Reconnect program in your area. This service is based in the Melbourne CBD and we recommend that you make contact with them. If you want to talk to a lawyer, contact Youthlaw in Melbourne. Also you can call the Kid's Help Line: 1800 551 800 (24 hours)

Past Questions of the Month