When can a child choose which parent they want to live with, in Australia?

When Can a Child Choose Which Parent They Want to Live With in Australia?

In Australia, the question of when a child can choose which parent they want to live with is complex and depends on several factors, primarily guided by the Family Law Act 1975. The law focuses on the best interests of the child rather than providing a specific age at which a child can make such a decision. This means that while a child’s views are considered, they are only one of many factors in determining living arrangements.

When Can a Child Choose Which Parent They Want to Live With in Australia?

In Australia, there is no specific age at which a child can legally choose which parent to live with. Instead, decisions about a child’s living arrangements are made based on the best interests of the child, as outlined in the Family Law Act 1975. While a child’s views are considered, these are not the sole determining factor. The court’s decision takes into account the child’s age, maturity, and reasons behind their preferences.

The Importance of Age and Maturity

The court recognises that every child is different, and their ability to make informed decisions varies based on their maturity, emotional development, and understanding of the situation.

Children Under 12

• Children under 12 are typically seen as less able to make fully informed decisions about where they want to live. However, from the age of 5, their views might be considered, especially if they are part of a family unit with older siblings. Younger children may be interviewed by court-appointed experts, either individually or as part of a sibling group.
• The court weighs their opinion less heavily than it would for an older child, focusing instead on what environment will best meet their emotional and physical needs.

Children Aged 12 to 14

• From the age of 12, a child’s views are generally given more weight. If the child can explain the reasons behind their preference, such as wanting to live closer to school or feeling emotionally supported by one parent, the court will take this into account. However, the court does not automatically follow a 12-year-old’s wishes.
• At this age, children are seen as better able to express their preferences, but the court will still carefully assess whether those preferences align with their overall well-being.

Children Aged 14 and Older

• Once a child reaches 14 years of age, their preferences are taken very seriously. Courts are more likely to consider their wishes, especially if they are mature and can articulate thoughtful reasons for their choice. However, the child’s preference must still align with their best interests—needs, not just wants, are considered.
• For example, a desire to live with one parent for educational or emotional reasons will carry more weight than a preference based on lenient rules or lifestyle benefits at one home.

Children Aged 16 and Above

• By the time a child is 16, courts are often hesitant to make decisions against their wishes unless there are compelling reasons to do so, such as concerns for the child’s safety. Children of this age often “vote with their feet,” meaning they make their own decisions about where they feel most comfortable living, and courts are less likely to intervene.

Factors the Court Considers in Child Custody Cases

When determining the weight to give a child’s opinion, Australian courts consider several factors:

1. Age and Maturity

• Older children and teenagers are generally better able to understand the consequences of their decisions. Therefore, the court may give their preferences more weight compared to younger children.
• Maturity plays a crucial role. A child who can express a clear and reasoned preference is more likely to have their opinion taken seriously.

2. Reasons for the Preference

• The court looks for genuine, well-thought-out reasons behind a child’s preference. For instance, wanting to live with one parent because they provide emotional support or better educational opportunities will carry more weight than a preference based on superficial reasons, like having fewer household rules.
• If a child’s decision seems influenced by one parent, the court may not give it much weight. The court is cautious about situations where one parent may manipulate or pressure the child into making a decision.

3. Emotional and Psychological Well-Being

• The child’s emotional health is paramount. If the court believes that the child’s preference might cause harm or distress, it may not follow the child’s wishes, even if the child is older.
• The court will evaluate whether the choice aligns with the child’s overall well-being, including their emotional and psychological needs.

Professional Assessments and Family Reports

To help make its decision, the court may seek the input of family consultants, psychologists, or social workers. These professionals interview the child, observe family dynamics, and assess the child’s situation. Their findings are summarised in a family report, which provides an impartial perspective on the child’s wishes and well-being.

• Family reports are commonly used in cases involving children over the age of 5. These reports help the court understand the child’s relationships with both parents, their emotional state, and the reasons behind their preferences.

The Role of Parental Influence

Courts are cautious about parental influence, especially if there are concerns that one parent may be unduly pressuring the child to express a particular preference. If the court finds evidence of this, it may disregard the child’s wishes, regardless of the child’s age.

Can a Child Choose Not to Visit a Parent?

The age of the child is not the sole factor when deciding whether they can refuse to visit a parent. For example, while a 17-year-old may have their wishes disregarded if the court deems their reasons immature or trivial, a younger child’s well-thought-out concerns—such as safety or emotional well-being—may carry significant weight.

The court examines whether the child’s preference is influenced by genuine concerns or external factors such as manipulation by a parent. Ultimately, the court prioritises what is in the best interests of the child.

The Two-Fold Test for Considering a Child’s Wishes

The court uses a two-fold test to assess the weight of a child’s preference:

1. The Age of the Child: While there is no set age, the older the child, the more likely their views will be considered. However, even children close to adulthood (such as 17-year-olds) may have their wishes overridden if the court believes the decision is not in their best interests.

2. The Child’s Maturity: The court evaluates the child’s maturity and ability to understand the consequences of their decision. A family consultant (typically a social worker or psychologist) will assess the child and provide a report on their level of understanding.

Conclusion: Best Interests Are Key

In Australia, the court focuses on the best interests of the child when deciding which parent the child should live with. While a child’s preferences are considered, they are not the only factor. The court evaluates the child’s maturity, reasoning, and emotional well-being, often relying on professional assessments to make an informed decision.

If your child is expressing a preference regarding their living arrangements, it is crucial to seek legal advice. A child custody lawyer can help you navigate the complexities of the situation, ensuring that your child’s best interests are protected.