When can a child decide which parent to live with in Australia?

Under Australian family law, children have a right to enjoy a meaningful relationship with both their parents, and to be protected from harm. A court is required to give greater weight to the consideration of the need to protect children from harm.

The Family Law Act 1975 is gender-neutral and does not make assumptions about parenting roles.

When a family court is making a decision about a child, the court will make an order that is in the best interests of the child.

When the parents of a child under the age of 18 separate, they both continue to share parental responsibility for the child.

This is called ‘Equal Shared Parental Responsibility’. Equal shared parental responsibility is not the same as equal time.

This means that both parents share the responsibility for making decisions about major long-term issues. It includes things like where a child will go to school, major health decisions, and religious observance.

This applies except when a court decides it is in the best interests of the child to remove parental responsibility from one or both parents.

When a relationship breaks down and there are children involved, children’s future living arrangements need to be decided.

Contrary to popular belief, a child’s age is not one of the determinants in deciding where the child will live when a court needs to hand down a decision in relation to parenting arrangements. Having said that, the older a child gets, the more weight is given to their wishes. It is very rare (and difficult) for older children to be forced to spend time with a parent that they flat out refuse to see.

Instead, a number of the key factors the court will assess in deciding the living arrangements are:

• the child’s maturity
• their level of understanding of the situation
• whether their wishes about where to live are well informed
• whether or not the child has been unduly influenced (usually by one or other of the parents, but also potentially by relatives, counsellors, etc.

The role of an independent children’s lawyer

In some situations, the court will appoint an Independent Children’s Lawyer to make an independent assessment of the child’s wishes and circumstances. This person will gather information from sources including teachers, doctors, psychologists, counsellors, police and child welfare authorities before deciding whether to interview the child or not.

This appointment will often be made in cases where:

• there are allegations of physical, sexual or psychological child abuse
• there is ongoing intractable conflict between the parents
• the child is alienated from one or both parents
• there are cultural or religious differences affecting the child
• there is a proposal to separate siblings into different households or take a child overseas

Avoiding the cost and distress of court should be paramount in any family breakdown situation. An experienced legal professional can provide helpful advice on family dispute resolution options so that going to court becomes a last resort.