Can a Child Choose Which Parent to Live With in Australia?

Introduction

What role do children's wishes play in Australian family court?

Section 60CC of the Family Law Act 1975 requires courts to consider children's views as part of deciding what is in the child's best interest. But the child's view is just one factor. The court balances it against safety, stability, and the child's relationship with each parent.

Judges look at several things when weighing a child's views:

1. Age and maturity. A teenager's views usually carry more weight than a young child's. But age alone is not the test. In Barningham [2011] FamCAFC 12, the Full Court found an 8-year-old's views deserved weight because she understood her situation well. In Lancefield & Lancefield (No. 2) [2020] FamCAFC 312, the court said judges must not treat two children's views as equal when one child expressed a clear preference and the other only had an unstated impression.

2. How the child expresses their views. Children can speak to a family consultant, an Independent Children's Lawyer (ICL), or sometimes directly to a judge. In Tandy & Padula [2024] FedCFamC2F 671, the father tried to block his 8-year-old from meeting the ICL. The court ordered the meeting, saying the child has a right to be heard through a neutral representative.

3. Whether the views are genuine or influenced. The court checks if a parent shaped the child's thinking. In Harendra & Veda (No 3) [2024] FedCFamC2F 27, a 13-year-old repeatedly said she wanted to live with her father and even ran away from her mother's house. The judge gave little weight to these views because the father may have influenced them.

4. The context behind the views. Sometimes children react to excitement or short-term emotions rather than thinking about the long term. In Warner [2016] FCCA 1887, the children were excited about moving to Perth with their mother. The judge gave this almost no weight.

"It is not, and never has been, the case that a judge in his Honour's position is obliged to make orders consistent with a child's stated views... Rather, a primary judge is obliged to consider the weight which should be given to any stated views. Of course, a range of factors may affect the weight given beyond simply the age and level of maturity of the child. In other words, context is critical and it is a matter for the judge to determine how giving effect to a child's stated view accords with the child's best interests."

Core Point: The court always listens to children. But listening does not mean obeying. The judge makes the final call based on the child's overall safety and wellbeing.

Why doesn't the court always follow what children want?

Children's wishes are one factor among many. The court's job is to protect children, not to follow their instructions. Blindly following what a child says can lead to three problems:

1. The child's views may be shaped by a parent. In Harendra & Veda (No 3) [2024] FedCFamC2F 27, the court worried that the children lacked the maturity and insight to express views that matched their best interests because the father had influenced them.

2. Children should not carry the burden of adult decisions. In Sujatha & Gutierrez [2024] FedCFamC1A 223, a trial judge made a relocation order conditional on the children's future wishes. The Full Court struck this down. An expert in the case said it is not the responsibility of children to guide decisions about relocation.

3. Children cannot always see the long-term consequences. In Timms & Payton [2015] FCCA 3324, an 11-year-old did not want to move house or change schools. The court allowed the move anyway because staying with her primary carer mattered more for her future than getting what she wanted right now.

"The strength of X's views is a strong factor contraindicating the making of an order that would allow her mother to relocate X. She doesn't wish to move or to change schools. She is of an age where her views need to be listened to and, if possible, respected. However, all parties recognise that whilst X's views are certainly relevant, and probably an important consideration, it is not the only consideration that the Court must take into account."

Key Point: The court protects children from making decisions that could damage their long-term relationships or safety. A child's wishes matter, but they never override the child's best interests.

Can a child choose which parent to live with?

Many people believe there is a magic age when a child can decide where to live. In Australia, no such age exists. The court weighs a child's views based on their maturity and understanding, not their birthday.

An 8-year-old who clearly understands their family situation may have more influence than a confused teenager. What matters is how well the child grasps the consequences of their preference.

"Her Honour was entitled to consider that the child was only eight, although in finding that there was nothing in her report card to indicate that her maturity was anything more than average, she ignored the evidence of Ms B that E did appear to be expressing mature views."

Do not wait for a specific birthday to involve your child's views in a court case. If your child can explain their preference with reasons that show they understand the situation, those views can carry real weight regardless of age.

Can a child refuse to see a parent?

If your child refuses to visit the other parent, that does not mean you can stop sending them. Court orders remain enforceable. A child's refusal does not automatically excuse a parent from following those orders.

That said, judges understand the reality. Physically forcing a teenager into a car is not practical and not in anyone's interest. Courts try to find solutions that respect the child's feelings while keeping the door open for the relationship.

"Courts should not be prepared to make orders they are not prepared to enforce, and at this stage, defined orders for V to either live with, or spend time with the mother are likely to be problematic."

Not every child's refusal is treated the same. The court looks at why the child is refusing and whether anyone is behind it.

The decisive factor is whether the child's refusal comes from their own genuine feelings or from a parent's influence. In Abernethy [2009] FMCAfam 426, there was no evidence of coaching, so the court respected the teenager's autonomy. In Harendra & Veda (No 3) [2024] FedCFamC2F 27, the father's influence and safety concerns meant the child's wishes were overridden.

What age can a child choose to live with a parent?

There is no minimum age. There is no maximum age. The court looks at maturity, not numbers. Judges assess maturity through family reports written by psychologists, meetings with an Independent Children's Lawyer, and sometimes the child's own words and actions.

A child forming a new, strong view about where they want to live can change the entire direction of a case.

"The thrust is that the judge erred in failing to appreciate that in the earlier proceedings and, in particular, in the earlier family report, the child had not expressed a view either way about where she wished to live and thus the issue of her views were a significant change."

Even older children with strong views can be overruled. In Timms & Payton [2015] FCCA 3324, an 11-year-old girl strongly opposed moving and changing schools. The court still allowed her mother to relocate with her. The judge decided that staying with her primary carer mattered more for her long-term wellbeing than honouring her preference.

How courts typically assess a child's maturity:

1. Family reports. A psychologist meets with the child in a neutral setting and writes a detailed assessment of the child's views, maturity, and any signs of influence.
2. Independent Children's Lawyer. An ICL speaks with the child and presents their views to the court. The ICL's job is to represent the child's best interests, which may differ from what the child says they want.
3. The child's own reasoning. If a child can explain why they prefer one arrangement over another with specific, logical reasons, the court gives that more weight than a simple statement of preference.
4. Consistency over time. A view expressed repeatedly and consistently carries more weight than a one-off statement made during a stressful moment.

Summary

There is no magic age. Australian law does not set an age at which a child can decide who to live with.

Maturity matters more than birthdays. A mature 8-year-old's views can carry more weight than an immature teenager's.

Safety always comes first. The court will override a child's wishes if the preferred parent poses any risk to the child.

Parental influence reduces the weight of a child's views. If a judge suspects a parent coached the child, those views will count for very little.

Expert reports are essential. Psychologists and Independent Children's Lawyers help the court understand whether a child's views are genuine and well-considered.

Court orders are still enforceable. A child's refusal to see a parent does not excuse the other parent from following court orders.