At what age can children decide who they live with?

There is a common belief that children can decide which parent they will live with once they turn 12 years of age.

In short, its not true, at least in the Australian Family Court system.

By law, parents are required to provide a competent degree of supervision and not leave their children unattended before the age of 12, however this does not mean that once they turn 12 the children get to decide which parent they will live with.

The Court does however take into account the children’s views when deciding a parenting application and who a child will live with.

The Family Law Act in section 60CC sets out the considerations that the Court should weigh up when deciding the living arrangements of children. The children’s views are an important consideration, but not necessarily the most important depending on the circumstances of the case.

The Court looks at all of the relevant factors that add up to be what is in the best interests of a child to make a decision on who they live with.

When the Court considers the views of a child, the child’s age, maturity, and the level of their understanding is all weighed up. For example, if a child wishes to live with a particular parent because that parent helps them with their homework and emotionally supports them, that will likely have a significant impact on the outcome. Whereas if a child prefers a parent because they allow them better access to TV or Xbox then unsurprisingly the Court won’t be overly persuaded.

Children very rarely give evidence to a Court, usually their views are obtained in an interview by a family consultant (a qualified professional who writes Court Family Reports).

Where an Independent Child Lawyer (ICL) is appointed, children will meet with the ICL to express their views. This meeting must occur prior to Final Orders being made and there are exceptions including if the child is under 5 years of age or if the child does not wish to meet.

The views of a child can negatively effect whether a child will live with a parent if the Court considers the child may have been coached or overly influenced by a parent.

To get the best legal advice, discuss your personal circumstances with one of our expert family lawyers at our Ipswich office. We will listen to you, ask the relevant questions, and then give advice tailored to your family.