There is a common misconception in Family Law in Australia that parenting disputes only focus on which parent a child will live with or how much time they will spend with each parent once the child turns 12. This is not true! The Family Law Act 1975 (Cth) does not establish any specific age requirement for children to express their views or make decisions regarding parenting arrangements. 

Australian Family Law Legislation focuses on the child’s best interest. The Court considers a range of factors focusing on the child’s best interest. 

Quote graphic stating “The child’s views are influential rather than determinative.”

The Best Interests Test 

Paramount consideration is the child’s best interests (s 60CA). 

Core factors (s 60CC) include: 

      1. The benefit of the child having a meaningful relationship with both parents. 

        1. The need to protect the child from physical or psychological harm, including exposure to abuse, neglect, or family violence. This is given greater weight than other factors. 

          1. Any views expressed by the child, considering age, maturity, and whether the views are freely expressed. 

            1. The child’s relationships with parents, siblings, and other significant people. 

              1. The likely effect of any changes in the child’s circumstances, including stability of home, school and community. 

                1. Each parent’s capacity to meet the child’s needs and to support the child’s relationship with the other parent. 

                  1. Any family violence orders and their circumstances. 

                There is no statutory “choice age.” Even strong preferences expressed by older teenagers are assessed within this framework. 

                How Much Weight Do a Child’s Views Carry? 

                A child’s views are taken seriously, but the court evaluates them based on maturity and understanding, not age. Their opinion is one of many factors, ensuring that parenting arrangements provide safety against family violence, stability, and emotional well-being. 

                How the Court Hears from Children 

                Children do not give evidence in the witness box. Their views are usually presented through: 

                    1. Family reports by court-appointed family consultants (s 11F), or single expert reports. 

                      1. An Independent Children’s Lawyer (ICL) appointed in appropriate cases (s 68L) to ensure the child’s interests are properly before the Court. 

                        1. Child’s Psychologist. 

                          1. Child Counsellor. 

                            1. Mediator or Family Dispute Resolution practitioner. 

                          These processes aim to understand the child’s perspective without exposing them to parenting dispute or pressure. 

                          Key Takeaways 

                              • There is no legal age at which a child can decide who to live with in Australia. 

                                • A child’s views are one factor within the child’s best interest framework and gain weight with age and maturity. 

                                  • Safety and protection from family violence receive greater weight than other considerations. 

                                    • Changes to parenting arrangements should be formalised by consent orders or sought through the Court, supported by evidence. 

                                  Seeking Legal Advice on Parenting Dispute? 

                                  If you or someone you know needs legal advice on a parenting dispute, contact Shan Lawyers, based in Bayside and serving wider Melbourne, which specialises in family law matters, including overseas/international parenting dispute and relocation. Contact the friendly Shan Lawyers team today to help you with your parenting arrangement issues. 

                                  About the Author 

                                  Portrait of Thirumalai Selvi Shanmugam for professional profile on the website

                                  Thirumalai Selvi Shanmugam is the founder, and Director, and Principal lawyer at Shan Lawyers and is a leading family law specialist in Australia whose expertise is often sought by organisations and the media.