Can a Child Choose Which Parent to Live With Australia

There Is No Magic Age

Australian family law does not set an age at which a child gets to decide where they live. There's no switch at 12, no automatic right at 14, no threshold birthday that hands the child a binding vote. This is one of the most persistent myths in family law, and it leads parents to make planning decisions based on a rule that doesn't exist.

What the law does say is that a child's views are one of six factors the court considers when determining parenting arrangements. The weight given to those views depends on the child's maturity and understanding — not their age alone.

How Children's Views Enter the Process

Under Section 60CC of the Family Law Act 1975 (as reformed in May 2024), the child's expressed views are weighed according to their age, maturity, and developmental understanding. In practice, this means:

Younger children may not have their views formally sought. They may be too young to articulate preferences in a way that a court can meaningfully assess. Their behaviour and attachment patterns may be observed instead.

School-age children may express preferences through a family consultant — a psychologist or social worker appointed by the court to prepare a family report. The consultant meets with the child in an age-appropriate setting and reports on their wishes, but also assesses whether those wishes are genuinely the child's own or reflect coaching or alignment with one parent.

Older children may have their views given more weight, particularly when they can articulate coherent reasons for their preference. But greater weight doesn't mean determinative — the court still assesses all six factors, and the child's view is one input among several.

Teenagers and older adolescents may have their views given more weight. Courts may take a teenager's strong preference seriously, but it is still not determinative and the court must consider the other best-interests factors.

Why Views Don't Equal Decisions

Courts are cautious about treating a child's expressed preference as a decision for several reasons:

Influence and alignment. After separation, children sometimes align with one parent — not because they've independently assessed the situation, but because they've absorbed that parent's perspective. This isn't always deliberate coaching; children naturally gravitate toward the parent they perceive as more distressed or more in need of support. Courts and family consultants are trained to distinguish between a genuine preference and an influenced one.

Short-term vs long-term thinking. A child who says "I want to live with Dad because he lets me stay up late and doesn't make me do homework" is expressing a preference, but it's not the kind of reasoning a court treats as weighty. Children often prioritise immediate comfort over long-term stability, which is why the court doesn't delegate the decision to them.

Developmental pressure. Asking a child to choose between parents places enormous emotional burden on them. Courts generally prefer to determine arrangements based on adult evidence and expert assessment rather than putting the child in the position of making a choice that will hurt one parent.

The Family Report Process

In contested parenting cases, the court typically orders a family report. A family consultant:

1. Interviews each parent separately
2. Interviews the child (or children) in an age-appropriate session
3. Observes each parent interacting with the child
4. Assesses the child's relationships, emotional state, and expressed views
5. Provides a recommendation to the court

The family report is one of the most influential pieces of evidence in a parenting hearing. It provides the court with an expert's assessment of the child's views in context — filtering out influence, assessing maturity, and considering whether the child's stated preference actually serves their best interests.

What This Means for Your Parenting Plan

If you're negotiating a parenting arrangement — whether directly, through mediation, or with a lawyer — your child's preferences matter, but they're not the whole picture. A parenting plan or consent order proposal that's built around "the child said they want to live with me" without addressing the other best interests factors (safety, developmental needs, parental capacity, relationship value) is incomplete and unlikely to satisfy a court registrar.

The stronger approach is to incorporate your child's views into a broader proposal that addresses all six factors. If your thirteen-year-old has expressed a clear preference for spending school weeks with you because your home is closer to their school and activities, that preference aligns with developmental needs and practical logistics — which makes it compelling rather than just anecdotal.

The South Australia Child Custody & Parenting Plan Guide includes worksheets that help you build a parenting proposal across all six Section 60CC factors, including how to appropriately incorporate your child's views in a way that strengthens your arrangement.

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