At What Age Can a Child Choose Which Parent to Live With in Australia?

When separating parents come to our firm, one of the most common questions we hear is, “When can my child just decide for themselves?” 

The short answer is that there is no magic age under Australian family law. The longer answer, however, is more nuanced and more useful than most people expect.

Understanding how courts treat a child’s wishes, and when those wishes actually shift the outcome, can make a real difference to how you approach parenting negotiations after separation.

There Is No Set Age In The Family Law Act

Many parents assume there is a specific age, often cited as 12 or 14, at which a child’s preference becomes legally binding. This is a myth. The Закон о семейном праве 1975 года (Cth) does not prescribe any age at which a child’s views override a court’s decision.

What the Act does require is that the court give weight to a child’s views, taking into account their age and maturity. This is one of the factors courts must consider when determining what is in the best interests of the child, which is the paramount consideration in every parenting matter.

The Best Interests Test: What Courts Actually Look At

Since amendments to the Family Law Act in May 2024, courts can now apply a revised best interests framework. Rather than a ranked hierarchy of factors, courts must now consider all relevant circumstances, including:

• The safety of the child, such as protection from harm, abuse, neglect or family violence
• The child’s own views, given weight appropriate to their age, maturity, and understanding, and the circumstances in which those views were expressed
• The developmental, psychological and emotional needs of the child
• The capacity of each parent to meet those needs
• The benefit to the child of having relationships with both parents and other significant people, where it is safe to do so
• Any other relevant circumstances

A child’s preference is therefore one input among many. It does not automatically determine the outcome. 

So When Does A Child’s Preference Actually Matter?

In practice, the views of an older, more mature child who expresses a consistent preference may be given substantial weight, but there is no set age at which that preference becomes decisive. 

The court looks at age, maturity, understanding, and the circumstances in which the views were formed. A child who appears to have been coached, pressured, or placed in the middle of parental conflict will have their views scrutinised more carefully, regardless of age.

A younger child’s preference will still be considered. However, the question is always how much weight to give it, including everything the court knows about the child’s circumstances and wellbeing.

There is no threshold where a child simply “gets to decide.” Even a 16-year-old cannot unilaterally override a parenting order. That said, if an older child’s circumstances or views have changed significantly, then the court can change the order. The focus is always on what serves the child’s best interests. 

How Are A Child’s Views Communicated To The Court?

Children do not normally appear in court to give evidence, and they should never feel pressure to take sides or be drawn into parental conflict. Instead, there are other ways a child’s views may be placed before the court:

• Independent Children’s Lawyer (ICL): The court may appoint an ICL to represent the child’s interests. The ICL meets with the child, gathers their views, and presents them independently, without being bound by exactly what the child says.
• Family Report: A family consultant or psychologist prepares a family report after meeting with all parties, including the children. This report is an important piece of evidence that the court may rely on in determining parenting arrangements.
• Expert Evidence: In some cases, child psychologists or other specialists may give evidence about a child’s views and needs.

If you are concerned about how your child’s voice will be heard in proceedings, our parenting and children matters team can walk you through what to expect.

What About Teenagers Who Refuse To Follow Orders?

Courts can and do make parenting orders that specify where a child will live and when they will spend time with each parent. However, enforcing those orders against an older child who refuses to comply is genuinely difficult.

If a teenager is consistently refusing to follow a parenting arrangement and the reasons appear legitimate, for instance, they feel unsafe, or the relationship with that parent has broken down, courts may revisit the orders. A parent seeking to “force” compliance in those circumstances may find that approach backfires.

Equally, if a child’s view appears to have been influenced or pressured by one parent, that is a matter courts take very seriously. Where there are concerns that a child’s resistance to contact is not genuinely their own, the court will look carefully at the circumstances in which those views were formed.

What If You’re The Parent Your Child Is Resisting?

If your child is pulling away or refusing to spend time with you, it’s painful, but it’s also more common after separation than people admit, and it’s rarely permanent. There are many things you can do now to make this easier for your child: 

Approaching your child directly

• Stay warm, calm and consistent. Keep showing up, even when it isn’t reciprocated. Reliability rebuilds trust faster than any single conversation.
• Take the pressure off. Don’t demand they explain themselves, choose sides, or “get over it.” Low-stakes contact, a text, a shared interest, or a short outing lands better than a heavy talk.
• Never put them in the middle. Criticising their other parent or quizzing them about the other household reads as forcing them to take sides and pushes them further away.
• Listen before you defend. If they’re angry or hurt, let them say so. Feeling heard is often what reopens the door.
• Look after yourself. A counsellor can help you carry the grief and frustration so it doesn’t spill into the relationship.

Support and legal options

Beyond a direct approach, there are structured pathways. One option involves Family Dispute Resolution (mediation), which is required before most parenting applications in any case. Choose from child-inclusive mediation or a Children’s Contact Service, which lets your child’s voice be heard safely or makes handovers less stressful. 

Otherwise, family or reunification therapy, which courts sometimes order in entrenched cases, can be a good idea if circumstances have genuinely changed since your orders were made.

One important caveat: where a child’s reluctance is connected to fear or family violence, their safety comes first. In that situation, get advice before pushing for contact.

Can You Agree Without Going To Court?

Absolutely, and for most families, that is the better path. If both parents can reach an agreement about parenting arrangements that reflects their children’s genuine wishes and best interests, that agreement can be documented in different ways. 

A Parenting Plan records what has been agreed but is not automatically enforceable by the court. Consent Orders, by contrast, are filed with the court and are legally binding, providing significantly more certainty for both parents.

Consent Orders give both parents certainty without the cost and stress of contested proceedings. You can read more about our approach to parenting and children matters и divorce and separation on our services pages.

A Note on Safety

When a child’s preference to live with one parent is connected to concerns about family violence, those concerns need to be properly raised and documented. The court’s primary obligation is to the child’s safety, and there are specific provisions under the Family Law Act dealing with family violence and parenting orders. If you are in that situation, please seek legal advice as a matter of priority.

Family Lawyer For Custody Disputes 

The best outcomes in parenting disputes almost always come from parents who put their children’s genuine needs first and, where needed, get proper legal advice early rather than letting conflict escalate.

Working through parenting arrangements after separation is rarely straightforward, and getting the right legal advice early can make a significant difference to the outcome for your family. 

Kingsford Lawyers’ dedicated family law team has extensive experience in parenting and children’s matters and prides itself on treating every client with care and genuine consideration, not just as a case number. Call us on 1300 244 342 to book a confidential, obligation-free chat, or book a consultation.