This is a question we are commonly asked by parents and, simply put, there is no specific age at which a child can choose where they live. So then, when does a Court consider it appropriate that a child’s wishes are taken into account?

The Law

To understand how and when a child’s wishes will be taken into account we must first look at the law that governs parenting matters – the Family Law Act 1975 (“the Act”).

It is the paramount consideration of the Court when making a parenting order that they must have regard to what is in the best interests of the child (section 60CA of the Act).  The Court’s primary considerations of the child’s best interests are:

  • the benefit to the child of having a meaningful relationship with both 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.

Greater weight is given to protecting a child from harm then having a meaningful relationship with both parents.

The Court will then have regard to what they call the additional considerations which are contained in section 60CC of the Act.  While the Act expressly states at section 60CE that a child is not required “… to express his or her views in relation to any matter”, the first additional consideration in determining living arrangements is:

  • “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;”

So, if a child does express a wish about their living arragements the Court will look at a number of factors including: –

  • Age
    • As explained above, while there is no set age that the Court will decide a child’s wishes will be taken into account, the Court will have regard to the child’s age. A young child’s wishes will be handled differently to that of a teenager and the Court will then make a decision on how much weight will be given to those wishes.
  • Emotional or intellectual maturity
    • The Court will have regard to whether or not the child is mature enough for their wishes to be considered. For example, it may be the case that a 9 year old in one matter is mature enough to articulate their wishes while a 12 year old in another matter may lack that same maturity.
  • Act(s)
    • The Court will look at the child’s actions. For example, has the child been refusing to spend time with a parent, running away from home or acting out in protest at being forced to spend time with a parent.
  • Reasoning
    • A child may wish to live primarily with one parent because there are less rules or no routine in one household (for example regular junk food and unlimited screen time) or they may have well reasoned legitimate reasons for preferring one household over another (for example proximity to school and better relationship with one parent). The reasoning behind the expressed wishes of a child will be taken into account when determining the weight to be given to those wishes.
  • Manipulation by a parent or other family
    • The Court will need to consider whether the child’s wishes are as a result of influence by other people such as the other parent. If parental manipulation is the basis for the expressed wishes, the Court is likely to afford those wishes less weight.

The Court will take account of all of the above factors and the circumstances of the case in determining how much weight should be afforded to wishes expressed by a child.

Presenting Children’s Wishes

Parents often include evidence of their child’s wishes in their Affidavit material however, in order to obtain an objective opinion a Court will usually appoint an Independent Children’s Lawyer (‘ICL’) or a Family Report Writer.

An ICL is appointed to represent a child’s best interests but ultimately, provide their own views on the matter.  Occasionally, if appropriate, an ICL will meet with a child and discuss their wishes.  At a Trial, the ICL will provide their position in regards to the care arrangements for a child.  While a child may have discussed their wishes with an ICL, the Court will still have regard to the factors outlined above.

A Family Report is an independent assessment by a Family Consultant that will assist the Court with making a decision regarding the care arrangments of a child.  The parents and the children will meet with the Family Consultant and the Family Report Writer will prepare a report based on their observations of the family and the evidence in the case to make recommendations about future parenting arrangements.  A Family Report Writer can make recommendations about the weight to be attached to the wishes of a child in their Report.

What Should I Do If I Need Help?

If you find yourself in a similar circumstance or if you need assistance in relation to a parenting matter, you should contact our office today to speak with one of our solicitors.