My Child is 12: Can they decide which parent they want to live with?

In Australia, family law matters, including decisions about where a child should live when their parents are separated, are governed by the Family Law Act (1975). According to this Act, when a matter concerns a child’s living arrangements and welfare, the best interests of the child are the most important consideration in any decision that is made.

There is a common misconception around the living arrangements of children that causes people to think that a child will have the deciding vote about which parent they would like to live with when they reach the age of 12. This is not the case.

How are living arrangements determined?

While the views of a child may be taken into account, there is no set age at which a child can decide which parent they want to live with.  Generally speaking, it is always best for co-parents to negotiate with each other a parenting agreement, outlining the child’s living arrangements and how much time they should spend with each parent.  Experienced family lawyers can help families to consider the best interests of the child and reach an agreement on these issues without the intervention of the Court.

If co-parents cannot reach an agreement about a parenting arrangement, then it is open for either parent (after they have completed compulsory pre-action procedures such as mediation) to make an application to the Court to determine this issue. When deciding a parenting arrangement for a child or children, a range of factors will be taken into consideration by the Court.

These factors will include the child's age, maturity, and level of understanding, as well as the child's relationship with each parent, their current living arrangements, and any other relevant factors.  For instance, usually from the age of around 12 years, the Court will place some weight on the wishes of the child however it is unlikely to make an Order based solely on the child’s wishes. As children become older and more mature, the Court generally starts to place more weight on their wishes.

It is important to note that the Court will always seek to make a decision regarding a child’s living arrangements that is in the best interests of the child. This means that the child's wishes and preferences will be considered, but they will not necessarily be the determining factor.

Advice from experts

In some cases, especially if the family dispute is a high conflict matter or it is difficult to determine what is in the child’s best interest, the Court may also appoint an independent children's lawyer to represent the child and to provide advice to the court. This can be particularly helpful in situations where the child's views may not be clear, or where there are welfare and safety concerns. 

The independent children’s lawyer would gather information about the child’s circumstances, their relationship with each parent and any welfare and wellbeing factors, liaise with other professionals such as psychologists, medical professionals, and counsellors, then advocate for the child and provide advice to the Court about the outcome that would be in the child’s best interest.

If you are experiencing a family breakdown and would like advice concerning your child’s living arrangements and how they will be determined, contact the family law team at Lamrocks Solicitors on ph: 02 4731 5688 for advice.  Our experienced lawyers have worked with a large number of families in this area and have been able to help them reach an agreement without having to refer the matter to the Court.