The UK Parliament has recently announced that children aged 10
years and over will be able to express their opinion about what
should happen to them in parenting proceedings following a
relationship breakdown. Many in the UK are hailing this
introduction as an improvement to the family law system. The same
law does not apply in Australia and therefore the question
"At what age can a child decide where he or she
lives?" remains one of the most commonly asked questions
of family lawyers.
In this Alert, Partner Geoff Wilson and Associate Helen Davison
answer the question.
At what age can children decide where they live?
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. Under section 60CC(3)(a) of the Family Law
Act a child's wishes are one of 16 factors the court must
consider when deciding what parenting arrangement is in a
child's best interest. By itself, a child's wish may not be
determinative of the dispute. Interestingly, a child's wish is
not one of the primary considerations the court must consider when
deciding what is in the child's best interest. The two primary
the benefit of a child having a meaningful relationship with
both of the child's parents; and
the need to protect the child from physical or psychological
The court will decide how much weight it places on the
child's view based on an assessment of:
the child's maturity;
his/her level of understanding;
whether the wish is well informed; and
whether or not the child has been influenced.
For example, if a six-year-old is assessed as exhibiting high
levels of maturity and understanding of the conflict between his
parents then the court may place greater weight on his views.
Equally, if a 14-year-old expresses a wish to move overseas to live
with her Dad because he buys her whatever she wants, but Mum has
previously been the primary carer, a court may assess the child as
lacking maturity or being influenced by factors not in the
child's best interest, and give little weight to her
Who ascertains the child's wishes and assesses their
maturity and level of understanding?
We have all seen TV shows where the cute child is in court
passionately persuading the judge to let him or her stay with mum
or dad. In reality, however, this does not occur, as only in the
rarest of cases will a judge interview a child. The most common way
a child expresses their view is through being interviewed by a
court consultant or a privately-funded family report writer who is
usually a trained counsellor, therapist or psychologist. The family
consultant or family report writer interviews and observes the
parents, the children and any other people living in the same
household as the children, such as step-parents and step-siblings.
During the family report interview, the family report writer will
ask the child their wishes and ask questions to assess their
maturity and level of understanding. In some circumstances, due to
the children's ages or other factors, a family report writer
may decide not to ask the child for their wishes. A family report
is then prepared for the judge containing recommendations about
what parenting arrangement the judge should order. The judge will
usually follow the recommendations outlined in the family
To answer the question posed: there is no fixed age when a child
can express their view about where they should live in a parenting
dispute. Furthermore, no right exists for children to decide where
they live; instead their wishes are one of many factors a court
must consider in reaching a decision. In our experience, many
children prefer not to give their opinion, either because theirs is
not a strong one, or because they are afraid of hurting one or both
parents. Additionally, some children find the family report process
intimidating and do not feel comfortable expressing their views to
While we have discussed how the court decides a parenting
dispute, we believe that parenting disputes are best resolved
outside of court and encourage our clients to only apply to court
when all other options have been exhausted. If you are unable to
resolve your parenting dispute then we encourage you to speak to a
family lawyer about the different out-of-court dispute resolution
options available. A number of these options can involve your
children, such as child inclusive mediation and counselling.
If you are doing a Will, or you are the executor of a deceased estate, consider what taxes and duties could be payable.
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