Introduction
Q1: My child says they want to live with me. Will the court just go along with that?
A: Not automatically. The court must consider your child's views, but it decides how much weight to give them based on age, maturity and whether the views are truly the child's own. In one 2022 case, the clearly stated wishes of children aged 12 and 10 were given considerable weight and directly shaped the final orders. Reference: Blatch & Blatch (No 5) [2022] FedCFamC1F 651
Q2: My ex keeps badmouthing me to the kids. Will the court still listen to what they say?
A: Yes, but the weight can drop sharply. In one case the court accepted that two young children genuinely did not want to see their grandmother, yet gave those views little weight because they had been shaped by their mother's fears rather than the children's own experience. Reference: Hallett & Malcolm [2020] FCCA 835
Q3: My teenager flat-out refuses to see the other parent. Will the court force them to go?
A: Rarely. Judges know that forcing a teenager is unrealistic, and courts avoid making orders they are not prepared to enforce. That does not mean whatever the child says becomes the final arrangement, though. The court still checks the views against everything else in the case. Reference: Regan & Regan (No. 2) [2021] FedCFamC1F 199
Does the court have to consider what my child wants?
The law leaves the court no choice about listening, only about how much the views end up counting. Section 60CC(2)(b) of the Family Law Act 1975 requires the court to consider, when deciding what is in a child's best interests:
"any views expressed by the child"
If your child has said something about where they want to live or how much time they want with each parent, the judge must take it into account. Before the law was amended in May 2024 the same requirement sat in section 60CC(3)(a), so older judgments cite that number instead. The idea has not changed.
Two other sections matter here. Section 60CD says the court learns about a child's views mainly through a family report prepared under section 62G, or through an independent children's lawyer appointed under section 68L. Children almost never speak to the judge directly. Section 60CE adds that nothing in the law permits anyone to require a child to express views. Your child is allowed to stay silent.
The parents married in 2005 and had two daughters, aged 12 and 10 by the time of the hearing. They separated in December 2018 after a physical altercation. The father was initially convicted of assaulting the mother, but the conviction was overturned on appeal. The mother sought sole parental responsibility and asked for the children to spend no time at all with the father, or at best professionally supervised visits. The father asked for equal time.
A court-appointed psychologist interviewed the girls. Both said clearly that they wanted more time with their father, including overnight stays and holidays. Both knew their mother did not support this. The psychologist observed them with the father and found them warm and at ease, with no resistance.
Outcome: The judge gave the children's views considerable weight and ordered fortnightly blocks of time plus half of all school holidays with the father. But the views did not decide everything. The court still refused the father's equal-time proposal because the parents' conflict was too entrenched, and it gave the mother sole parental responsibility.
The children's views are clearly stated. They want to spend more time with their father including overnight time and holiday time. They are 12 and 10 years old and they understand that their mother does not support their wishes. Their views need to be given considerable weight.
For you, the message is that when children of this age express a clear and consistent wish, and independent observation backs it up, judges usually act on it. Both conditions mattered here: the views were clear, and they survived checking against outside evidence.
What if the other parent has influenced the child's views?
When influence is in the picture, the court separates two questions: whether the views are genuine, and where they came from. A child can honestly hold a view that an adult planted, and the court will still call that view genuine while giving it very little weight.
A grandmother applied to spend time with her two grandchildren, aged about 8 and 6. The children's father (the grandmother's son) had a serious history of violence and drug use, and the children had not seen him for five years. As a result of the father's prolonged violence, the mother developed post-traumatic stress disorder (PTSD). In 2017, the grandmother visited without prior agreement, a conflict followed, and the mother cut off all contact with the grandmother from that point on.
Both children told the family report writer they did not want to see their grandmother. The older child said she was scared because the grandmother was bad, then explained she had not actually seen the incident she was scared about. Her mother had told her about it. She also confirmed the grandmother had never hit or hurt them.
Outcome: The court made no orders for face-to-face contact. Instead, the grandmother was permitted to maintain limited contact with the children by sending a small number of cards, letters and gifts each year. The court also preserved the possibility of future participation in family gatherings, subject to strict conditions. The judge accepted the children's views were genuine but placed little weight on them because of their age and their mother's influence.
While I accept the children's views as genuine, I do not place a great amount of weight on them because of their young age, and the inescapable but certainly understandable influence of their mother.
Notice what the judge did not do. He did not accuse the mother of coaching or dismiss the children as liars. He simply traced where the views came from, found they rested on things the children had been told rather than experienced, and discounted them. If you are worried the other parent is shaping your child's views, this is the kind of evidence that matters: what the child actually says, and whether the child can explain it from their own experience.
How much do age and maturity change the weight?
Many parents assume there is an age at which a child gets to decide, but Australian law has never had a rule that at 12, or 14, or 16 a child chooses which parent to live with. What changes with age is weight, and the same judge can give different weight to different children in the same family on the same day.
The parents separated violently in 2012, and the mother went into hiding with their five children, then aged roughly 17, 15, 10, 8 and 6. The father had spent time in prison, and a protection order shielded the mother. He eventually accepted the children would live with the mother but asked the court to rebuild his relationship with the three youngest.
The children's views were presented to the court through a single expert. The two eldest children firmly refused any contact with their father, an attitude that may have stemmed from contempt for his conduct or from fear rooted in their past experiences. The three youngest children showed more mixed feelings: one said she somewhat wanted to see the father, another said he sometimes missed him, and the youngest said she thought of him from time to time.
Outcome: The court accepted the two teenagers' firm refusal at face value. Although the three younger children expressed that they missed their father and wanted to see him, and the court took those views into account, the judge found that these expressions fell short of showing a strong wish to resume regular time, and the risk arising from the father's past family violence remained the more important consideration. The court therefore ordered no face-to-face time with the father, allowing only limited contact through letters and cards. It also left open the possibility of adjusting the arrangements in the future: if the children later formed clearer and stronger wishes, the arrangements could be reconsidered.
On the whole, such comments could not be fairly regarded as unreserved expressions of committed desire to resume regular interaction with the father, though they do evince regret about the complete loss of the father from their lives.
Put these cases side by side and a pattern emerges: a firm, clearly explained view from a teenager weighs a lot, while a vague or wavering comment from a young child weighs little, especially when it collides with safety concerns. At the far end of the scale sits Waugh & Bannon [2014] FCCA 893, where a 9-year-old girl had been raised without knowing her biological father existed. She had expressed no views because she could not. The judge refused to invent a wish for her, made no fixed orders for time, and noted that if she ever asked to meet her father in the future, he trusted the mother to take that seriously.
If you want the age question in more depth, including what happens at each stage of childhood, we cover it in a separate article on whether a child can choose which parent to live with.
Can the court override what the child wants for safety reasons?
It can, and this is where the weight of a child's views reaches its ceiling. Section 60CC(2)(a) expressly requires the court to treat the safety of the child as a mandatory consideration. The court will not, simply because a child has expressed a wish to see a parent, make an arrangement that could expose the child to a risk of harm. Under the law that applied before the 2024 amendments, protection from harm was expressly ranked ahead of the child's views in the statutory framework, and that is the framework the appeal court applied in the case below. Even under the current law, the principle remains unchanged: if a court gives too much weight to a child's views while overlooking the safety risks the child faces, the decision may be overturned on appeal for legal error.
The father had committed extreme violence against the mother, including an incident in which he held a sword to their 15-month-old daughter's chest while threatening to kill the mother. He was convicted and spent two and a half years in prison. In 2012 the court ordered that he have no contact with the child beyond cards and gifts three times a year.
After his release on parole, a family consultant interviewed the child, then about 9. She said she was keen to see her father and confident her mother would support her, even though she knew he had hurt her mother and gone to prison. The trial judge treated these views as a significant change, reopened the case and ordered supervised visits moving toward unsupervised time.
Outcome: The Full Court overturned the orders on appeal. The child had not seen her father since age 4, no independent children's lawyer had been appointed, and the only evidence of her views was a single narrow report that never tested whether the wish was realistic or an idealised picture formed in the father's absence. Elevating her views over protection from harm was an error. The case was sent back for rehearing before a different judge.
That task required her Honour first to assess those views against the child's age, maturity and characteristics to determine the weight to be attached to them. In this case, it is important to note that no Independent Children's Lawyer was appointed to represent the child's interests and thus her Honour's only input on the views of the child was from the limited report ordered by her. In those circumstances, we accept the submission that her Honour ought to have proceeded with considerable care when taking those views into account.
The appeal judges agreed with the mother that the trial judge had elevated the child's views over the primary consideration of protecting her from harm, and said so in exactly those terms. For a parent, the practical point is that a child saying they want contact does not by itself reopen a case or dissolve safety findings. The court first asks how reliable the view is, then weighs it against the risk.
Case comparison: why did the child's wish win in one case and lose in the other?
| Comparison | Wang & Dennison (No. 2) [2009] | Tindall & Saldo [2016] |
|---|---|---|
| What the children wanted | Never to see their father again | To see the father after his release from prison |
| Background of the views | Shaped by the mother turning them against him, but genuinely and firmly held | Formed during five years of absence, possibly idealised |
| Independent evidence | 26-day trial, family report and an independent children's lawyer | No independent children's lawyer, one narrow report |
| Outcome | ✅ Views followed, no time with the father ordered | ❌ Orders built on the views overturned on appeal |
| Decisive factor | Forcing contact risked self-harm | Views cannot outweigh protection from harm |
The decisive factor: neither case turned on what the children wanted. Both turned on what acting on the wish would do to the child. In Wang & Dennison, overriding the girls' refusal risked real psychological harm, so the refusal stood even though it had poisoned roots. In Tindall & Saldo, granting the girl's wish would have exposed her to a violent father on thin evidence, so the wish gave way. Weight follows consequences, not sentiment.
What happens when a child simply refuses to go?
By this point courts become very practical, because they will not build orders on a refusal they cannot change. When a child is determined not to go, the court will usually neither simply force the child nor readily let the relationship be cut off entirely. Instead, it looks for a middle course that reduces the pressure on the child while leaving room for the relationship to be repaired in the future.
After a 26-day trial, the court found the mother had made baseless allegations of abuse against the father and had purposefully conditioned their two daughters to believe them. Court-ordered reunification counselling followed. It failed. The girls, nearly 12 and 10, met their father only twice in three months of the program.
Both girls told the family consultant they refused to live with or see their father. The elder said that whatever the judge thought, she would eventually live with her mother anyway, and that if the court would harm her by forcing contact, she saw no reason not to harm herself. She had thought about how. Her sister said she wanted the father to go away and the court to stop.
Outcome: The court made no orders for the children to spend time with the father. The judge accepted the views were not objective, and that a blameless father was losing his children to the fallout of the mother's conduct, but found the views genuinely held and the risk of forcing the issue unacceptable. The father was left with letters at birthdays and holidays, and contact if the girls ever sought it.
The strong views the children are evincing are not models of objectivity. However, I accept that they are views the children genuinely hold. It is not surprising that the children are clearly aligned with the mother who is their primary caregiver. They have lived exclusively in the mother's care for the past four years.
This is the hardest kind of outcome in family law, and the judge said openly that it rewarded bad behaviour. It still happened, because by the time of trial the children's opposition had hardened into something no order could safely undo.
The same practicality shows up at the interim stage. In Regan & Regan (No. 2) [2021] FedCFamC1F 199, five months after separation, a 14-year-old was living with the father and refusing to see the mother, while his two younger brothers lived with the mother and refused to see the father. The judge declined to prescribe living or time arrangements for any of the three older boys, ordered family therapy instead, and explained the restraint in one sentence:
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.
One warning before you rely on any of this: a child's refusal does not excuse you from complying with existing orders. If orders are in place and your child resists handovers, the safe route is to go back to court to vary them, not to stop complying. How courts treat refusal in that situation is a separate topic with its own case law.
If your situation involves a child resisting contact, these related articles go deeper: Can a Child Choose Which Parent to Live With in Australia? covers the age question step by step. Child Refuses Visitation for No Reason? The Other Parent May Be Behind It: How Australian Courts Respond explains how courts detect one parent turning a child against the other. When Will Courts Order No Contact With a Child? (Australia) covers the rare cases where courts cut contact entirely.
Summary
The court must listen, but listening is not obeying. In Blatch & Blatch (No 5), the clear and independently confirmed wishes of children aged 12 and 10 shaped the orders, yet the same judge refused the equal time their father wanted.
Genuine views can still receive little weight. In Hallett & Malcolm, the court believed the children meant what they said, then discounted it because the words traced back to their mother's fears, not their own experience.
There is no "watershed age". Maturity and the firmness of the wishes determine the weight a child's views receive. In Dunst & Dunst, teenagers' outright refusal was accepted while their younger siblings' wavering comments were not, in the same judgment.
Safety outranks wishes. In Tindall & Saldo, letting a 9-year-old's eagerness to see her violent father outweigh her protection was an appealable error.
Courts will not make orders they cannot enforce. In Wang & Dennison (No. 2), entrenched refusal by girls of nearly 12 and 10 stood, even though the court knew the views had been planted and the father had done nothing wrong.
| ✅ Do | ❌ Avoid |
|---|---|
| Let your child's views reach the court through a family report or independent children's lawyer | Coaching your child or rehearsing what to say to the report writer |
| Support the child's relationship with the other parent where it is safe | Badmouthing the other parent where the child can hear it |
| Go back to court to vary orders if your child genuinely resists | Stopping compliance with orders and blaming the child's refusal |
| Raise safety concerns with evidence, and ask for an independent children's lawyer | Assuming a teenager's stated wish automatically decides the case |
