What Age Can a Child Decide Which Parent to Live With in Australia?
In Australia, there is no specific legal age when a child can decide which parent to live with. The Family Law Act 1975 does not set a minimum age for children to choose their living arrangements. However, courts give increasing weight to a child’s views as they mature, typically considering the opinions of children aged 12 and above more seriously, while still weighing all factors in the child’s best interests.
Is There a Legal Age When Children Can Choose Their Parent in Australia?
The Common Misconception About Age 12, 14, or 16
There is a common misconception that when children reach a certain age, they can then decide for themselves as to which parent they want to live with.
What the Family Law Act Actually Says
The reality is that the Family Law Act does not prescribe a certain age at which children have the autonomy to make decisions in relation to the live with and spend time with arrangements with their parents.
Is the age of your child a factor considered by the Family Court?
The age of your child is one factor to be considered by the Court but is not the sole determinant of their views being taken into account. Your child’s wishes are just 1 of 16 factors to be considered by the Court in determining the best interests of the child.
Is your childrens wishes a primary consideration in Family Law?
Interestingly, a child’s wishes is not one of the primary considerations the Court must take into account in deciding the best interests of the child. The two primary considerations are the benefit of the child having a meaningful relationship with both parents and protecting the child from harm.
The more appropriate question is what weight the Court will apply to your child’s wishes. Your child’s level of maturity, insight and understanding are other important considerations. The Court will also consider whether your child’s wishes are well informed and whether your child has been influenced by their parents.
Can my child have an independent evaluation for parenting arrangements?
The Court can be assisted by an independent evaluation of the child by way of a court child expert, who will meet with your child and provide a report to the court as to your child’s understanding of the current parenting arrangements, based on their assessed maturity level and capacity to make decisions. The appointment of an Independent Children’s Lawyer who meets with the children can also assist in providing an independent view of what is in the child’s best interests.
Children ordered to live with father; appeal dismissed
Key Principle
Age alone doesn’t determine weight given to a child’s views – maturity, resilience, and potential parental influence are equally important
The recent case of Garram & Garram [2019] FamCAFC 239 provides an important discussion around how courts consider children’s views. This case was an appeal by the mother against a primary judgment ordering the children to live with the father, despite the elder child (15) expressing a preference to live with the mother.
The case highlights that a child’s age alone does not determine how much weight their views will carry – the court also considers maturity, psychological resilience, and whether the child’s views have been influenced by a parent.
Read the Full Case Analysis ▼
Background: What Happened in This Case?
This case was an appeal by the mother against a primary judgment made in August 2019 ordering the children to live with the father.
The elder child (15 years old) had expressed a clear view to live with the mother, while the younger child (12 years old) preferred to live with the father. Importantly, both children expressed strong views about remaining together.
The Mother’s Appeal: Why Should a 15-Year-Old’s Views Be Followed?
A key ground of the mother’s appeal was that the primary judge failed to give proper regard to:
The wishes of the elder child (nearly 16 years old)
The wishes of both children to remain living together
The mother argued that as the elder child was nearly 16, there was a greater responsibility on the judge to explain why her wishes should be rejected.
What the Children Told the Family Report Writer
The Elder Child (15) said:
“I want to live with my mother and see my dad on some weekends and some of the holidays. I don’t want to be separated from my sister.”
The Younger Child (12) said:
She would like to live with the father but did not want the mother to get upset with her for choosing him.
The Family Report Writer’s Concerns
The Family Report Writer raised several important concerns that influenced the court’s decision:
1. Loyalty Demands and Parental Influence
The mother was assessed as “less than child-focused” regarding promoting the children’s relationship with the father. The report writer was concerned that:
“It would seem likely this would evolve into a situation where loyalty demands made by the mother would trump any desire for substantial and significant time with the father. Basically, it would become too hard for the children to manage over time.”
2. The “Pseudo-Maturity” Warning
The report writer cautioned against assuming a teenager’s apparent maturity equals good decision-making capacity:
“Pseudo-maturity in an intelligent 15-year-old is often mistaken for the capacity to make good choices, after taking into consideration all possible consequences, both short-term and long-term, when in fact the young person is ill-equipped to make decisions that are best left up to the adults in her life who love and care for her.”
3. Psychological Resilience Differences
The elder child was assessed as “far less resilient” than the younger child and “less able to cope with the loyalty demands” being placed on her by the mother.
4. Long-Term Consequences
The report writer warned:
“[The elder child’s] alignment with the mother, whilst currently being used as a means of protecting her psychological wellbeing, may well evolve into her rejecting her father over time, should the parental conflict continue. This would have long reaching consequences for her emotional and psychological development and well-being.”
The Court’s Reasoning: Why the Elder Child’s Views Weren’t Followed
The appellate judge confirmed the primary judge did consider the children’s views – they were expressly discussed. However, the court was cautious about the weight given to them because:
Parental Influence: Evidence suggested the elder child’s views were influenced by the mother
Maturity vs Age: Despite being nearly 16, the elder child’s psychological resilience was assessed as limited
Competing Interests: Following the elder child’s wishes would override the younger child’s preference
Relationship Protection: The court found that if the children lived with the mother, their relationship with the father “will be further eroded and eventually lost”
Children’s Welfare: The existing arrangement was causing the children stress and unhappiness
The Legal Principle: Section 60CC(3)(a) of the Family Law Act
The court confirmed that under s 60CC(3)(a) of the Family Law Act and the High Court decision in Bondelmonte v Bondelmonte [2017] HCA 8, the Court may consider any matter it thinks relevant when determining the weight to give to children’s views.
This includes:
The child’s maturity level
Their psychological resilience
Whether views appear influenced by a parent
The impact of parental conflict on the child
Long-term consequences for the child’s relationships and wellbeing
Case citation: Garram & Garram [2019] FamCAFC 239
Key Lessons from Garram v Garram
Lesson
What It Means for Parents
Age isn’t everything
A 15-16 year old’s views won’t automatically be followed
Maturity matters more than age
Courts assess psychological resilience and understanding
Influence is scrutinised
If a child appears coached or pressured, their views carry less weight
All children’s views count
One child’s preference won’t automatically override another’s
Long-term welfare prevails
Courts look beyond immediate wishes to future outcomes
Sibling relationships matter
Courts try to avoid separating siblings where possible
What Should Parents Take Away from This Case?
It can be difficult for parents when children are telling them, for apparently valid reasons, that they want to change their arrangements.
Important steps to take:
Never act unilaterally on what your child tells you
Open dialogue with the other parent if possible and safe to do so
Seek legal advice early from a specialist family lawyer if you cannot resolve the issue
Avoid putting children in the middle – loyalty demands can harm their wellbeing and weaken their voice in court
If your child is expressing views about changing their living arrangements, contact Sarah Bevan Family Lawyers for expert advice on how to proceed.
There is no legal age in Australia when a child can decide which parent to live with.
The Family Court considers a child’s views alongside 16 other factors under the Family Law Act 1975, giving more weight to mature, well-informed opinions regardless of specific age.
Courts typically give increasing consideration to children aged 12 and above, but maturity and understanding are more important than a specific birthday.
Sarah Bevan Family Lawyers can help you understand how your child’s age and circumstances may affect parenting arrangements through our Sydney CBD, Crows Nest, and Parramatta offices.
There is no specific age under Australian law where a child can decide which parent to live with.
The court considers various factors, including the child’s maturity, understanding, and any influence exerted upon them.
While children’s views carry increasing weight as they get older, only the Family Court can make binding decisions about living arrangements through parenting orders.
Our Accredited Family Law Specialists at Sarah Bevan Family Lawyers can explain how the court is likely to view your child’s preferences in your specific circumstances.
A 12 year old’s preferences will be considered by the Family Court, but they cannot legally “choose” on their own.
The court assesses the child’s maturity, understanding, and whether their views have been influenced by either parent.
While 12 is often cited as an age where views carry more weight, this is a guideline rather than a legal threshold.
Sarah Bevan Family Lawyers has extensive experience presenting children’s views effectively to the Family Court from our conveniently located Sydney offices.
There is no age at which a child can legally refuse to see a parent in Australia.
Even teenagers must comply with existing court orders. However, courts are unlikely to force older teenagers (16-17) into arrangements they strongly and consistently oppose.
Parents remain responsible for facilitating contact as ordered by the court, and failing to do so can result in contravention proceedings.
In some cases where a child persistently refuses contact, or there are safety concerns such as family violence, a parent may seek sole parental responsibility to make major decisions without the other parent’s involvement.
If your child is refusing to see the other parent, Sarah Bevan Family Lawyers can advise on your options, including varying existing orders through the FCFCoA.
Victoria follows the same federal Family Law Act as all Australian states – there is no state-specific age threshold.
While a 16 year old’s views carry significant weight due to their maturity, they still cannot unilaterally decide their living arrangements.
The Family Court makes the final determination based on the child’s best interests, considering all relevant factors under section 60CC of the Family Law Act.
NSW courts follow the federal Family Law Act, which does not specify an age when children can refuse contact with a parent.
Courts will consider a child’s views but must balance this against the benefit of maintaining meaningful relationships with both parents – one of the two primary considerations under the Act.
Professional assessment of the child’s wishes is usually required through a Family Report or Independent Children’s Lawyer.
As NSW-based family law specialists, Sarah Bevan Family Lawyers understands how local courts approach these sensitive matters.
The court may appoint an independent child expert (Family Report Writer) or Independent Children’s Lawyer to evaluate and report on the child’s understanding and circumstances, ensuring their views are accurately represented.
These professionals interview the child privately, assess their maturity level, and determine whether their expressed wishes are genuinely held or influenced by a parent.
The Family Report Writer provides a detailed written report to the court with recommendations about parenting arrangements.
Sarah Bevan Family Lawyers can guide you through this process and help you understand what to expect from family assessments.
Australian family courts use several methods to understand children’s views:
Family Report Writers (typically child psychologists) interview children privately and assess their maturity. Independent Children’s Lawyers (ICLs) may be appointed to represent children’s interests separately from both parents. In some cases, judges may speak with older children directly in chambers.
The court ensures children are not pressured to take sides or feel responsible for the outcome.
Our experienced family lawyers at Sarah Bevan Family Lawyers can advise whether requesting a Family Report or ICL would benefit your matter.
It’s recommended to discuss the situation amicably with the other parent first and avoid making any unilateral decisions.
If you cannot reach agreement, consider family law mediation or consult a specialist family lawyer as early as possible. Never act on a child’s request alone without proper legal advice, as this could negatively impact future court proceedings.
The court will want to understand why the child wants to change arrangements and whether this is genuinely in their best interests.
Sarah Bevan Family Lawyers offers initial consultations from our Sydney CBD, Crows Nest, and Parramatta offices to discuss your options when children want to change their living situation.
Factors such as parental conflict, psychological resilience, and loyalty demands can significantly impact how a child’s preferences are perceived by the court.
The court will consider whether a child has been coached or pressured, whether they truly understand the consequences of their expressed wishes, and whether their views reflect genuine feelings or alignment with one parent due to conflict. This is sometimes referred to as parental alienation.
A child’s “pseudo-maturity” may also be considered, particularly in teenagers who appear mature but may lack the capacity to fully understand long-term consequences.
Our Accredited Family Law Specialists at Sarah Bevan Family Lawyers can help you understand how the court might interpret your child’s expressed preferences.
Parents must continue to encourage compliance with court orders and make reasonable efforts to facilitate arrangements.
If a mature teenager consistently refuses, courts may consider varying the orders through a proper application. However, parents could face consequences for contravening orders if they don’t make genuine attempts to comply.
The court recognises that physically forcing older teenagers to comply is often impractical and potentially harmful.
Sarah Bevan Family Lawyers can advise on applications to vary parenting orders when circumstances have changed, including when teenagers are refusing to follow existing arrangements.
While you can have age-appropriate discussions about your child’s feelings, directly asking children to choose between parents can cause significant emotional harm and may be viewed negatively by family courts.
Children should never feel responsible for custody decisions. Placing them in the middle of parental disputes can lead to anxiety, guilt, and long-term psychological impacts – issues that may be explored during separation and mental health assessments.
If your child spontaneously expresses preferences, listen supportively but don’t press for details or use their statements against the other parent.
Sarah Bevan Family Lawyers can advise on appropriate ways to understand your child’s needs without causing them distress.
The weight given to a child’s opinion depends on several factors: their age and maturity level, their understanding of the situation and consequences, whether their views appear genuinely held or influenced by a parent, and their psychological resilience.
The two primary considerations are the benefit of the child having a meaningful relationship with both parents and protecting the child from harm.
Sarah Bevan Family Lawyers, with our team of Accredited Family Law Specialists, can explain how all these factors apply to your specific parenting matter and help you achieve the best outcome for your children.
It can be difficult for parents when children are telling them, for apparently valid reasons, that they want to change their arrangements. It is important to never act unilaterally on this. If possible (and safe) to do so, open dialogue with the other parent about the issue. If you cannot resolve the issue, then seek advice from a specialist family lawyer as early as possible.
