When can a child choose where to live?

One of the most important issues that arises after a relationship ends is figuring out what the care arrangements for any children will be. Will they live with each parent in a week-about fashion, every second weekend with Dad, or should they spend no time at all with Mum?

There is no singular approach that works for every family. Instead, the Family Law Act 1975 (Cth) sets out a variety of considerations that must be factored in when deciding upon arrangements which are in a child’s best interests. One of these considerations is a child’s own wishes, being section 60CC(2)(b).

Can a child decide where to live?

No, a child cannot decide where they will live.

That is the short answer; however, there are practical considerations to think about as well.

A child’s wishes are almost always relevant to figuring out what their care arrangements will be. The decision of how relevant these wishes are, though, is a matter for the parents and the Court to determine, depending upon the stage of the proceedings. Another consideration that everyone must think about is how practical it is to set in place arrangements for a child that they clearly do not want to occur. Otherwise, the arrangements risk being thwarted soon after being imposed by the child refusing to move households.

When can a child choose where to live?

A helpful rule of thumb is that the older a child is, the more weight will be attributed to their wishes.

Naturally, a 5-year-old, 12-year-old, and 17-year-old’s wishes are each going to have a much different level of weight.

The following decisions of the Court are excellent examples of the spectrum of the ages of children, and the weight attributed to their views:

Eckhardt & Eckhardt [2024] FedCFamC2F 271

• 15-year-old child.
• Court made orders contrary to the child’s wishes due to the significant risks of harm associated with the arrangements that the child wanted (i.e. living solely with their father).

Mattina & Falconi [2024] FedCFamC2F 931

• 12-year-old child, X.
• Due to the circumstances of the case, Court made orders for X to spend time with her mother in accordance with X’s wishes

Solghi & Danwar [2022] FedCFamC2F 1654

• 13-year-old and 12-year-old children.
• The children expressly wished not to see their father nor for him to have any involvement in their lives.

Keith & Zemlinsky [2023] FedCFamC2F 1413

• 17-year-old child.
• Very significant weight placed on views, which were sound.
• Court confirmed the views weren’t, however, determinate.

Bosco & Shelton [2022] FedCFamC2F 35

• 4-year-old child.
• No weight placed on their wishes.

What does the Court consider when determining whether a child can make this decision?

During the Court process, expert evidence will typically be sought in order to put the child’s wishes into the record. Most commonly, this evidence will be either a Child Impact Report (a more concise report) or a Family Report (a detailed report).

Interviews are held with the parents, the child, and any other family members who are closely involved.

The Court will consider a variety of factors when determining what a child’s views are, including:

• The evidence of each parent and any other involved parties.
• Any subpoena materials tendered to the Court.
• Any expert reports, including Child Impact Reports and Family Reports.
• The evidence of the Court Child Expert (the author of the expert report).
• The reasonableness of a child’s wishes.

How does the Court assess the child’s wishes and level of understanding?

Once the Court has been provided with evidence about the child’s wishes, the Court must nonetheless examine the evidence closely and assess its weight.

As mentioned above, a child’s age is a significant consideration as to weight. Other considerations include:

• What type of language does the child use when conversing with the Court Child Expert?
• What are the prospects of the child being compliant with the proposed arrangements?
• Do the messages the child sends differ between their interview with the Court Child Expert and what appears in other evidence, such as subpoena materials?
• Does the child express any guilt, or a protective view towards one of the parents?
• What is the underlying ‘spirit’ of the wishes?
• Is there any other evidence which substantiates a basis for a child’s wishes. Is it reasonable for a child to have such wishes? Or could there perhaps be a basis for coaching or parental alienation by one of the parents or interested parties?

Get legal advice on children’s matters after divorce

There is no single determinative consideration for the Court. The Court must balance the health and safety of a child with arrangements that are in their best interests. A child’s wishes are but one consideration amongst several others. Each family is different, and so the Court will not adopt a one-size fits all approach nor apply the law to similar circumstances in the same way.

Obtaining expert legal advice will help in ensuring you put a compelling argument forward about the care arrangements you are seeking.

Please contact our office should you have any questions at all about family law, parenting matters, or your child’s wishes.