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A question frequently asked by parents during separation is when can my child decide where they wants to live?

The Family Law Act defines a child to be a person who is under 18. Until a child is 18 or over the Court has the power to decide where the child will live even if the child does not want to live in that location. While the children‘s views must be taken into consideration the Court’s paramount consideration is the best interests of the child. A child’s views are most commonly provided through a family report.

The question for the Court is how much weight the Court should give to the children’s view when the child expresses a view about where they want to live. When considering a child’s view’s the court is required under Section 60CC(3)(a) of the Act to consider any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.

The degree of emotional and intellectual maturity of the child can vary. Age is not, of itself, an indicator of maturity.

In certain circumstances the child’s clear views may be that they want to live with one parent, however, if it is not in that child’s best interest for this to occur, the Court will not Order this to happen.

It is important that children are not put in a position of choosing between their parents. The issue of a child’s wishes should be examined only through professionals such as social workers, psychologists and counsellors.

If parental alignment (see parental alienation) occurs whereby parents are found to have actively influenced the child and this is damaging to the relationship between the child and the other parent this will adverse impact on the weighting the Court gives to the child’s wishes and also the aligning parent’s application before the Court.


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