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 considerations are:

  • 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 harm.

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 wishes.

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 report.

Summary

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 a stranger. 

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.