A common misconception is that a child can decide which parent they want to live with once they reach a certain age, often people assume this happens from about 13 years. In Australia, there is no specific age at which a child can legally “choose” which parent they will live with. Instead parenting orders must be made based on what is in the child’s best interests.
In determining the child’s best interests, the Court must consider any views expressed by the child under the Family Law Act 1975 (Cth). This does not mean that the child makes the final decision, or that the Court will automatically follow the child’s preference.
How does the Court understand child’s views?
The Court will not ask the child directly for their views, but instead relies on processes designed to obtain the child’s views in a way that minimises their involvement and protects them from feeling “caught in the middle”.
Some ways the Court becomes informed of the child’s views include:
1. Child Impact Report: a short-form report prepared in parenting matters. It may be organised privately (for example, before mediation) or during Court proceedings (usually prior to an Interim Hearing). It provides an independent view of how the dispute and current arrangements may be affecting the child.
2. Family Report: a more detailed independent assessment prepared for the Court in parenting proceedings. A family report assists the Court with observations and recommendations about the child’s best interests, including insight into the child’s views.
3. Independent Children’s Lawyer (ICL): A lawyer appointed by the Court to represent the child’s best interests. The ICL does not take instructions from the child, but will consider the child’s views, independent evidence and expert material when making submissions about what best promotes the child’s welfare.
How much weight does the child’s view carry?
A child’s views may be given more weight where:
1. the child is older and demonstrates greater maturity;
2. the child’s reasons are clear, thoughtful and consistent (rather than impulsive);
3. the view appears genuinely the child’s own, and not the result of pressure, conflict or coaching; and
4. the child understands the practical consequences of their preference (including school, time with the other parent, and day-to-day routines).
When Should You Get Legal Advice?
If your child is expressing strong views about where they want to live, or your current parenting arrangements are no longer working, it can help to seek legal advice early.
Understanding your options sooner can support more practical and child-focused arrangements, and may help reduce conflict and stress for everyone involved. f you require family law in respect to your parenting arrangements, please reach out to our office and one of our solicitors can assist you.