“Can my child choose who they live with?”
The original page answered this broadly correctly: a child does not simply make the legal decision, but their views can matter.
The main update is to remove age-based rules of thumb. Australian family law has no fixed age at which a child’s preference becomes decisive. What matters is the particular child, the reasons for their view and the wider best-interests assessment.
1. Do children have a say?
Yes.
Section 60CC of the Family Law Act 1975 requires the Court, when determining a child’s best interests, to consider any views expressed by the child.
But the child’s views sit alongside other considerations, including:
- safety from family violence, abuse, neglect or other harm;
- the child’s developmental, psychological, emotional and cultural needs;
- the capacity of each proposed carer to meet those needs;
- important relationships where it is safe for them to continue; and
- anything else relevant to the child’s particular circumstances.
2. What age can a child decide?
There is no fixed legal age.
You may hear statements such as “a child can choose at 12” or “the Court will do what a teenager wants after 14”. Those are not rules in the Family Law Act.
A mature teenager’s clearly explained views may carry considerable practical weight, while the views of a younger child can also be significant depending on the child and the circumstances.
3. What affects the weight given to a child’s view?
The Act does not provide a mechanical points system. The Court considers the evidence in context.
Relevant issues can include:
- the child’s age and developmental maturity;
- the strength and consistency of the view;
- the reasons the child gives;
- whether the view appears genuinely held;
- whether there is evidence of pressure, influence or loyalty conflict;
- the child’s emotional and psychological needs;
- practical issues such as school, travel and routine; and
- any safety concerns.
4. How does the Court hear the child’s views?
Children are generally kept out of direct adult litigation as much as possible.
Section 60CD allows the Court to inform itself of a child’s views through:
- a report prepared for the Court under the Family Law Act;
- an Independent Children’s Lawyer; or
- another method the Court considers appropriate under the Rules.
The child ordinarily does not need to walk into a courtroom and tell the Judge which parent they prefer.
5. Can a child be forced to give an opinion?
No.
Section 60CE expressly provides that nothing in this part of the Family Law Act allows the Court or another person to require a child to express a view.
That is important because some children do not want to choose between parents or may feel significant pressure if asked to do so.
6. Family Reports and Court Child Experts
A Court-ordered report can help the Court understand the child’s circumstances, relationships, needs and views.
Under the legislation, a family consultant preparing a relevant report will generally ascertain the child’s views and include them unless doing so is inappropriate because of the child’s age, maturity or another special circumstance.
The report writer may also consider the broader family dynamics rather than simply recording “Mum” or “Dad” as a preference.
7. What does an Independent Children’s Lawyer do?
An Independent Children’s Lawyer (ICL) represents and promotes the child’s best interests in the proceedings.
An ICL is not simply a messenger instructed to obtain whatever result the child asks for.
The ICL must ensure the child’s views are fully put before the Court where possible, but the ICL forms an independent position about what arrangements are in the child’s best interests.
Under the current legislation and guidelines, an ICL generally must meet with the child and give them an opportunity to express views unless:
- the child is under 5;
- the child does not want to meet or express views; or
- exceptional circumstances apply.
8. A child’s wishes and a child’s best interests are not always the same
A child may sincerely want an arrangement that the Court decides is not in their best interests.
For example, a child might prefer the home with fewer rules, want to remain near friends, or strongly align with one parent during a conflict.
The Court must consider the view, but it still has to determine what arrangement is safest and best overall.
The law aims to hear children without making them responsible for the outcome
A child should not be put in the position of feeling that they have to choose one parent over the other or that the final Court result is their responsibility.
9. Can parents agree to follow the child’s preference?
Parents can agree on new parenting arrangements if those arrangements are safe and appropriate.
Depending on the situation, the agreement might remain informal, be recorded in a parenting plan, or be formalised as consent orders.
But where there are existing parenting orders, parents should understand the legal effect of changing arrangements informally and obtain advice where needed.
10. What if there are already parenting orders?
An older child may become unwilling to follow an arrangement made years earlier, but that does not automatically cancel the existing orders.
The practical response depends on the circumstances. Parents may be able to agree on new arrangements, or an application to vary the orders may be necessary.
If there is a dispute, the Court will again consider the child’s best interests and any views the child expresses.
11. What if one parent says the child has been influenced?
Claims that a child has been pressured, coached or influenced are fact-sensitive.
The Court may consider:
- how and when the view developed;
- whether it has remained consistent;
- the language the child uses;
- the child’s relationship with each parent;
- evidence from professionals, teachers or other sources where relevant; and
- any broader family violence or conflict issues.
It is usually better for parents not to repeatedly question a child about where they want to live or ask them to prepare material for the litigation.
12. What about siblings who want different arrangements?
The Court assesses each child individually.
Siblings may have different ages, needs, relationships and views. Their wish to remain together can be important, but it is not the only consideration.
13. Example — a 15-year-old wants to move
14. What should parents do?
- Listen without turning the child into the decision-maker.
- Do not ask the child to choose between parents.
- Avoid repeated questioning about Court proceedings.
- Do not promise the child that the Court will follow their preference.
- Focus on the reasons behind what the child is saying.
- Take safety concerns seriously.
- Get legal advice where existing orders or serious disputes are involved.
The simple way to think about it
The older and more mature a child becomes, the more important their views may be — but the legal test remains best interests
The Court must listen to views that are expressed, but it does not hand the legal decision to the child. The aim is to give the child a meaningful voice without placing the burden of the family-law decision on them.