When can my child decide who they want to live with?

A common question for separated parents is, ‘When can my child decide who they want to live with?’ It may seem like a straightforward question, however, the answer is genuinely depended on each individual case and the child.

In Australia there is no minimum age for a child to be able to express their view about where they would like to live in a parenting dispute. The courts, as with all family dispute cases involving children will look at the “best interest of the child”.

Under section 60CC(3)(a) of the Family Law Act there are 16 factors the court must consider when deciding what parenting arrangement is in the child’s best interest.

Determining the child’s best interests

The child’s wish is only 1 of the factors the courts will consider, and by itself the child’s wish may not be decisive of the dispute. As previously mentioned the court’s paramount consideration is to make decisions in the best interests of the child. In determining what the best interests of the child are the court must first primarily consider:

• the benefit to the child of having a meaningful relationship with both of the child’s parents; and
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Additionally, the court must also decide how much weight it places the child’s views based on an assessment of:

• the child’s maturity or level of understanding (age is not, of itself an indicator of maturity)
• the child’s level of understanding;
• whether the wish is well informed; and
• whether or not the child has been influenced.

The court is required to give the child’s views the amount of weight it considers appropriate in the circumstances of the case. Generally, a child’s view will be given greater weight the older they are and the shorter the period of time until the child reaches the age of 18.

Related Article: A Guide To Co-Parenting

How does the Court find out what the child’s wishes are?

The most common way for a child to express their wishes to the court is by a Family Report. The Family Report is an independent assessment written by a family consultant appointed by the court.

In conclusion, there is no ‘magic age’ a child can decide which parent they want to live with, if you are unable to resolve parenting disputes, we encourage you to speak to us about various dispute resolution options available to you out of court.

Note: This is general information advice only and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters, please contact us on 03 9620 0088 or email info@resolveconflict.com.au