A question we are commonly asked is at what age can a child decide where they live.
There is no right answer to this question.
When there is a family law dispute about a child’s living arrangements, the child’s wishes are just one of 16 factors a court must consider when making a decision as to what parenting arrangement is in a child’s best interest.
Importantly, a child’s wish is not one of the primary considerations in determining what is in a child’s best interests.
The two primary considerations in determining what orders are in the best interests of a child are:
- the benefit of a child having a meaningful relationship with both parents;
- The child’s right to be protected from harm.
The weight a court gives to a child’s views will depend on an assessment of the child’s age and maturity, level of understanding, whether their wish is well informed and whether the child’s views have been improperly influenced.
How does the court find out what the child’s wishes are and assess their level of understanding?
The way a child expresses their view is usually through being interviewed by a family consultant or a privately funded family report writer, who is usually a trained counselor or psychologist. The family report writer interviews the parties, the children, step-siblings and significant others living in the household and observes the relationship of the children with each of those persons. During the family report interview process the family report writer will ask the child their wishes and other questions so as to assess the child’s level of maturity and understanding. There are some circumstances where due to the child’s young age or other factors, the child is not interviewed. A Family Report is then prepared which may include comments with respect to the child’s wishes and a recommendation as to what parenting arrangement is in the child’s best interests. The Family Report is usually heavily weighted by the Court in making a decision as to what is best for the child.
For more information about the family report process read the Federal Circuit Court Fact sheet on the Family Report.
Summary: what age can a child decide where they live?
The answer to the question ‘what age can a child decide where they live’ is never. A child does not get to choose their living arrangements.
There is therefore no set age when a child’s wishes will be upheld by the court.
A child’s wish is just one of many factors a court has to consider in determining what orders are in the child’s best interests.
Having said that, the older the child and the greater their level of maturity, the less likely the court will make orders which are contrary to their views. When a child reaches their mid teens they will usually be at a point where they ‘vote with their feet’ and place themselves physically where they want to be, despite any order. But there is no fixed age when this occurs.
It is always better to resolve your parenting dispute outside of court. There are a variety of out of court dispute resolution methods available such as child inclusive mediation and counselling. An application to the court should always be considered a last resort.
If you are having difficulty resolving your parenting dispute, we encourage you to contact our experienced family law team for advice on your individual circumstances and a plan of attack to resolve your family law matter as quickly and cost effectively as possible.
