Can Children Decide Where They Live?

When a couple with children separate, there is usually a question over where the child will live. Parents who separate amicably can often agree on a sensible parenting arrangement, or if the parties cannot agree, they can apply to the Federal Circuit and Family Court of Australia (‘the court’) for parenting orders. The court then decides where the child should live based on a number of criteria, with the primary concern for the best interests of the child. One factor that influences the court’s determination is the child’s own wishes, if they are able to express their views. This article looks at the question of whether the children of separated parents can decide where they live.

Can Children Decide Where They Live?

The Family Law Act 1975 governs family law matters in Australia, including parenting disputes. The primary consideration in these matters is the best interests of the child. The recent Family Law Amendment Act 2023 changed the court’s approach when determining a child’s best interests. Prior to this amendment, the court had to start with the presumption that the child would benefit from having a meaningful relationship with both parents, even if the child expressed a contrary view. This is no longer a presumption under Australian law. In addition, under section 60CC(2)(b) of the Act, the court must now consider the views of a child as one of only six factors in determining what is best for them.

There is no minimum age at which a child can express their views in a parenting proceeding. This provision means that the child’s opinion is a consideration in a court hearing, regardless of their age. This is somewhat unusual, as in other jurisdictions, such as the United States, only children of ‘sufficient age’ (in that case 14 years of age) can express a preference.

How Much Weight is Given to the Views of the Child?

Of course, while a child’s preferences are an important consideration in a parenting dispute, a young child cannot unilaterally decide where they live. Many children will have developmentally appropriate fears of spending time away from their home, but this will not prevent the court from making orders that a school-aged child should spend time with a non-residential parent. The court is also aware of the potential for parental alienation, for a parent to influence the child and make them unjustifiably fearful of spending time with the other parent.

When determining the relative weight to give the child’s views, the court will consider the child’s age, maturity and ability to express themselves. In addition, the opinion of the child is only one of the six major factors that the court takes into consideration when determining a child’s best interests in a parenting matter. The other factors are:

• the safety of the child and people who care for the child (including any history of family violence or family violence orders)
• the child’s views
• the development, psychological, emotional and cultural needs of the child
• the capacity of each person who will be responsible for the child to provide for the child’s developmental, psychological, emotional and cultural needs
• the benefit to the child of having a relationship with their parents, and other people who are significant to them (eg grandparents and siblings), and
• anything else which is relevant to the particular circumstances of the child.

How can children express their views?

It is rare for the registrar or judge in a family law matter to speak directly with a child, but their wishes are obtained in other ways. Commonly, a child will express their view to a family report writer or a court consultant. A family report writer is an impartial expert who will interview the child, their parents, siblings, and other household members, and may also observe them interacting. During the interview, the family report writer will ask the child about their own wishes and assess their level of understanding and maturity.

Sometimes a child does not want to give their view as they find the process intimidating or do not want to offend either of their parents. Of course, in some circumstances the family report writer may decide not to ask the child about their wishes and only submit a family report with recommendations based on their own observations. A family report is a compelling piece of evidence before the court, and it strongly influences the orders of the court unless there are exceptional circumstances.  

The other person who is pivotal in this circumstance is the Independent Children’s Lawyer, who acts to represent the child’s best interests in a parenting proceeding. In cases where the child expresses a strong view, the Children’s Lawyer will act as an advocate for this view, and help ensure that the court complies with its obligation to give serious weight to this factor.

Non-compliant children

Parents can usually enforce a parenting order even if the child is unwilling to cooperate. However, there does come a time when the child is old enough to ‘vote with their feet’ and enforce their own wishes as to where they spend time. The age when parents can no longer continue to enforce arrangements will differ between families, but it is not unusual for parents of young teens to experience some difficulty in enforcing arrangements.

To the best of their ability, both parents should continue to follow the parenting orders even in the face of resistance. However, the court will rarely force a mature and insightful child to spend time with any parent against their wishes. In that instance, the court is also reluctant to separate siblings who are strongly attached to one another when one is old enough to enforce their own wishes. This can mean that a parenting order becomes unworkable as soon as the oldest sibling reaches a degree of independence.

Go To Court Lawyers can provide advice on parenting arrangements, court orders and any other family law matter. Get in touch with our team today on 1300 636 846 for any legal assistance.