In Australia, there is no specific age at which a child can legally decide which parent they want to live with.
Instead, the family court considers a child’s wishes as one of many factors when determining custody arrangements.
Generally, the older and more mature a child is, the more weight their preference carries. However, the final decision is based on what is in the child’s best interests, rather than just their personal choice.
If you are wondering whether your child’s wishes will influence parenting arrangements, this guide explains how Australian family law approaches these situations.
How Does the Court Consider a Child’s Preference?
When disputes over custody arise, the Family Law Act 1975 prioritises the child’s best interests. This means that while a child’s preference is considered, it is not the only deciding factor.
The court will assess:
- The child’s age and level of maturity.
- Whether the child’s decision is independent or influenced by external pressure.
- The strength of the child’s reasoning for wanting to live with a particular parent.
- Any potential risks, such as family violence or neglect.
- The ability of each parent to provide a stable and supportive environment.
Older children, usually around 12 years and above, are more likely to have their preferences seriously considered, but there is no set legal age at which their choice becomes final.
Key Takeaway: A child’s preference is taken into account, but the court ultimately decides based on what is in their best interests.
Can a Child’s Choice Change an Existing Parenting Order?
If a parenting order is already in place, a child’s preference alone is not enough to override it. However, if circumstances change significantly, an application can be made to the court to review the order.
Common reasons for seeking changes include:
- A child expressing a consistent and strong preference for a different living arrangement.
- One parent moving to a new location, affecting schooling and routine.
- Changes in a parent’s ability to provide care.
- Concerns about the child’s safety or well-being.
Even if a child expresses a desire to live with one parent, the court will require evidence that the change is in their best interests before making any modifications.
Key Takeaway: A child’s preference can contribute to changes in a parenting order, but legal action is required to formalise any adjustments.
Need a Lawyer?
What Role Does a Family Consultant or Independent Children’s Lawyer Play?
In some custody disputes, the court may appoint a family consultant or an Independent Children’s Lawyer (ICL) to represent the child’s best interests.
These professionals assess the child’s situation and provide recommendations to the court.
A family consultant may:
- Speak with the child to understand their thoughts and feelings.
- Observe interactions between the child and each parent.
- Assess factors affecting the child’s well-being.
An ICL does not act on the child’s direct instructions but instead presents evidence to help the court make a fair decision.
Their role is particularly important in complex cases where a child’s safety or emotional well-being is in question.
Key Takeaway: Family consultants and Independent Children’s Lawyers help ensure a child’s voice is heard while prioritising their best interests.
What Happens When a Teenager Refuses to Follow Custody Arrangements?
As children grow older, enforcing custody orders can become more challenging. Teenagers, particularly those 14 years and older, may resist staying with one parent even if a legal order requires it.
In such cases, parents can:
- Encourage open discussions with their child about their feelings and concerns.
- Seek family counselling or mediation to address conflicts.
- Request a court review if there is a strong case for modifying the existing arrangement.
The court generally avoids forcing older teenagers into arrangements they are strongly against unless there are serious concerns for their safety.
Key Takeaway: Teenagers have more influence over custody arrangements, and the court considers their wishes carefully when disputes arise.
How Can Parents Support Their Child During Custody Disputes?
If your child is expressing a preference about where they want to live, it is important to handle the situation with care. Children can feel torn between parents, and conflict can add to their stress.
Ways to support your child include:
- Listening without pressuring – Encourage open communication without influencing their decision.
- Keeping conflict away from them – Avoid speaking negatively about the other parent.
- Seeking mediation – A family mediator can help create agreements that work for everyone.
- Focusing on their well-being – Regardless of legal proceedings, ensure they feel loved and supported.
The question of what age a child can choose to live with a parent does not have a simple answer.
While children’s preferences are taken into account, the family court makes decisions based on their best interests rather than age alone.
If you are dealing with a custody dispute, legal advice can help you understand your options and ensure the best outcome for your child.
Open communication, mediation, and professional guidance can all play a role in finding a solution that works for your family.