At What Age Can a Child Decide Who to Live With?
Understanding what age a child can choose to live with one parent over another:
When parents separate, one of the most emotionally difficult questions they face is where their child will live, and they often wonder, “At what age can a child choose which parent they want to live with?”
In Australia, the answer is not always straightforward. There is no fixed age at which a child can legally decide where they live. Instead, family law focuses on what is known as the best interests of the child, taking into account a range of factors, including, but not limited to, the child’s wishes.
This guide explains how Australian family law approaches children’s living arrangements, how a child’s views are considered, and what parents can expect if they are navigating parenting decisions during or after separation.
Understanding Child Custody Decisions in Australia
Australian family law governs how parenting arrangements are made for children following separation or divorce. These arrangements may be reached by agreement between parents, through mediation, or by court orders.
The Family Law Act 1975 (Cth) provides the legal framework for decisions about children. Importantly, the law does not use the term “custody” in the traditional sense. Instead, it focuses on:
Parental responsibility: decision-making about a child’s long-term welfare
Living arrangements: where the child lives and how time is shared with each parent
Parents are encouraged to consider creating a parenting plan, a written agreement outlining how they will care for their child. While a parenting plan is not legally binding, it can provide clarity and reduce conflict. A plan generally covers topics such as living arrangements, decision-making, communication and practical routines. If parents cannot reach an agreement, under the Family Law Act, the Court may make parenting orders, which formalise the arrangements in a legally enforceable way.
Regardless of how arrangements are determined, the guiding principle is always the same: the best interests of the child must come first.
Under Australian law, there is a presumption of equal shared parental responsibility, meaning both parents are expected to share responsibility for making major long-term decisions about their child, such as education, health care and religious upbringing, unless safety concerns or other serious issues exist. It is important to note that equal shared parental responsibility does not automatically mean equal time living with each parent. Living arrangements are considered separately, based on what best supports the child’s wellbeing.
The Best Interests of the Child: The Central Principle
The “best interests of the child” is the cornerstone of all parenting decisions under Australian family law. Courts, lawyers and family professionals are required to place the child’s welfare above the wishes or interests of either parent.
When assessing what is in a child’s best interests, the Family Court considers a range of factors, including:
The benefit to the child of having a meaningful relationship with both parents
The need to protect the child from physical or psychological harm
The child’s emotional wellbeing and developmental needs
The nature of the child’s relationships with parents, siblings and extended family
The child’s maturity level, age and individual circumstances
While a child’s wishes may be relevant, they are only one part of a broader assessment. The Family Court’s role is to ensure children are safe, supported and able to thrive.
Is There an Age at Which a Child Can Decide Where They Live?
A common misconception is that once a child reaches a specific age (often 12 or 14 years), they can choose which parent to live with. In Australia, this is not the case.
There is no legislated age at which a child can independently decide their living arrangements. Even older teenagers do not have an automatic right to choose. Instead, the Family Court considers:
The child’s views
The child’s maturity and understanding
Whether the child’s preferences are freely expressed
Whether those preferences align with the child’s best interests
As children grow older, their views may be given greater weight, but they are never the sole deciding factor.
How a Child’s Age and the Child’s Maturity are Considered
While age alone does not determine outcomes, it often plays a role in how much weight is given to a child’s views.
Younger children may struggle to fully understand the long-term implications of their preferences. Older children and teenagers may be better able to articulate their views, explain their reasoning and understand the impact of their choices.
The Court looks closely at a child’s emotional and psychological maturity, including:
Whether the child can express consistent and reasoned views
Whether the child understands the practical consequences of their preference
Whether the child appears influenced or pressured by a parent
Whether the child’s views align with their wellbeing and safety
Each child is assessed individually. Two children of the same age may be treated very differently depending on their maturity and circumstances.
How Children’s Views are Heard by the Family Court
Children are not usually required to appear in court or give evidence directly. Instead, their views are gathered in more supportive and age-appropriate ways.
This often occurs through a family report, prepared by a qualified family consultant such as a psychologist or social worker. Some families may find the family report process intimidating, so keep in mind that these professionals are trained to speak with children in a way that minimises stress and avoids placing them in the middle of parental conflict.
Depending on the child’s age and development:
Younger children may be observed through play or interaction
Children may be spoken to individually or with siblings
Teenagers are often interviewed directly about their views
The family consultant then provides a report to the Court, offering professional insight into the child’s wishes, maturity, family dynamics and overall wellbeing.
Importantly, the consultant also considers whether it is appropriate to ask a child about their preferences at all. In some cases, protecting the child from emotional harm may mean limiting direct questioning.
It is also important to understand that some children choose not to express a clear preference at all. This is often because they are worried about hurting the feelings of one or both parents, or about being seen as taking sides. Family consultants are trained to recognise this and to ensure children are not placed under emotional pressure to express views they are uncomfortable sharing.
How Much Weight Does the Court Give to a Child’s Wishes?
The weight given to a child’s wishes varies from case to case. Factors that may influence this include:
The child’s age and maturity
The strength and consistency of the child’s views
The reasons the child gives for their preference
Whether the child’s views appear independent
Whether the preference promotes or undermines the child’s welfare
For example, an older teenager who strongly resists overnight time with one parent may be given more consideration than a younger child expressing a fleeting preference. However, even in these situations, the Court will carefully assess the broader context.
The Court’s focus remains on protecting children from harm and ensuring stable, supportive arrangements, even where that may differ from a child’s expressed or verbalised wishes.
Who Decides Where a Child Goes to School?
Decisions about a child’s schooling are an example of major long-term decisions that fall under parental responsibility. When parents share this responsibility equally, both are expected to participate in these decisions, even if the child primarily lives with one parent. If parents cannot agree on which school their child should attend, they may seek assistance through mediation, family consultants, or ultimately the Court.
The Role of the Court in Parenting Decisions
When parents cannot agree on living arrangements, the Court may be asked to intervene. This can feel daunting, particularly for parents concerned about how the process may affect their child.
The Court’s role is not to choose sides or punish parents. Its role is to:
Carefully assess all evidence
Weigh competing factors
Make decisions that prioritise the child’s wellbeing
Judges consider family reports, affidavits, expert evidence and the history of the family relationship. Issues such as parental conflict, communication and cooperation are also relevant.
Above all, the Court aims to create arrangements that support the child’s emotional security, safety and long-term development.
Family Violence and Child Safety Considerations
A child’s safety is always a critical consideration in parenting matters. Where there are concerns about family violence, abuse or coercive behaviour, the Court will prioritise protection from harm.
This may affect:
How much time a child spends with a parent
Whether time is supervised
Whether changes are made to existing arrangements
In these situations, a child’s expressed wishes are considered in light of their safety and emotional wellbeing. Protecting children from harm, including exposure to conflict or violence, is a fundamental obligation under family law.
Can Parenting Arrangements Change as a Child Gets Older?
Parenting arrangements are not necessarily permanent. As children grow and circumstances change, it may be appropriate to review existing arrangements. A child’s increasing maturity may become more relevant over time, particularly during adolescence.
Parents seeking to vary parenting orders should obtain legal advice before taking action. Changes should be approached carefully, with a focus on stability and the child’s evolving needs.
Child Support and Living Arrangements: Understanding the Difference
It is important to understand that child support is a legal issue of its own, separate to living arrangements.
Child support is assessed based on factors such as:
Each parent’s income
The child’s needs
The amount of care provided by each parent
Parenting arrangements, on the other hand, are determined by what best supports the child’s wellbeing. Disagreements about the child support scheme should not be used to influence decisions about where a child lives. Clear legal advice can help parents navigate both issues without unnecessary conflict.
Getting the Right Support for Your Child and Your Family
Parenting decisions following separation can be emotionally challenging. Many parents worry about doing the “right thing” for their child while managing their own stress and uncertainty.
Early legal advice can make a meaningful difference. A family lawyer can help you:
Understand how the law applies to your situation
Explore options for resolving matters without litigation
Protect your child’s wellbeing throughout the process
Family consultants and independent children’s lawyers may also play a role in complex matters, ensuring children’s needs remain at the centre of all decisions.
Need Help Understanding When a Child can Choose Where to Live?
There are no set laws about what age a child can decide where to live, or who to live with, in Australia. While a child’s wishes are important, they are considered alongside many other factors aimed at protecting the child’s welfare.
Family law is designed to support children, not place them in the position of making adult-level decisions. With the right guidance, parents can navigate these issues thoughtfully, calmly and with their child’s best interests firmly in focus.
If you are facing questions about parenting arrangements or your child’s living situation, seeking early advice can help you move forward with confidence and care.
This article provides general information on legal topics for educational purposes only and should not be considered legal advice or recommendations. While we have taken care to ensure accuracy, Omnia Legal is not responsible for any errors and makes no guarantees about the accuracy or completeness of the information. Links to third-party websites do not constitute an endorsement, and we are not liable for any damages that may result from using inaccurate or incomplete information. It's always best to seek legal advice for specific situations.