Do Children have a say in Family Law

9th May 2024

There is a common misconception in Australia that there is a set age at which a child can choose which parent they live with after the breakdown of a marriage or de facto relationship. The RMB Lawyers Family & Relationships Law Division explains.

There is no concrete rule as to when a child’s views can determine the outcome of a parenting dispute, and until a child reaches the age of 18, the final decision is out of their hands.

The Family Law Act 1975 prescribes that the paramount consideration in all parenting disputes should be ‘the best interests of the child’.

In determing this, the Court considers all the circumstances of each individual matter. There are numerous factors which the court is required to consider, and these are set out at s 60CC of the Family Law Act. One of these considerations is the views expressed by the child. However, the child is not required to express their views in relation to any matter.

So, what weight will the Court give to your child’s views? This depends on the maturity of your child, not their age. The Court is mindful of the different abilities of each individual child to express well-reasoned views. As such, while the Court will usually have regard to the views expressed by your child, the Court may also look at the maturity of your child and the surrounding circumstances and decide that those views should hold little to no weight.

In Family Law proceedings in Australia, children are often heard but rarely seen. There are mechanisms in place that can be used to ensure that your child’s views can be assessed without exposing your child to court proceedings. These include:

  1. A Family or Child Impact Report - This is where a psychologist, social worker or other court-approved expert meets with relevant parties, including you, your spouse and your child (and sometimes other interested parties such as grandparents and new spouses) in order to assess the situation and make recommendations; or

  2. An Independent Children’s Lawyer (ICL) - An ICL is an independent party who can be appointed to Court proceedings to represent the best interests of your child. An ICL will not act on the instructions of your child, but will usually talk to them so that your children has an opportunity to express any views, which the ICL will take into account in advocating on their behalf.

In summary, the views expressed by your child will, to some extent, be taken into account in assessing a parenting dispute. However, the weight given to those views will be based on a number of different factors, including your child’s level of maturity and understanding.

If you have any questions or concerns in relation to divorce or seperation, your first step should be to contact our office to arrange a free consultation. You can contact us by by phone or our 'Ask a Question' tool on our website.