How Old Does A Child Need To Be For The Child To Decide Where To Live?

We are often asked by clients to advise them how old their child needs to be for the child to decide with which parent they live.  The Family Law Act 1975 does not state that there is an age when a child can determine this. Instead the Family Law Act in section 60CA requires that the paramount consideration in determining where a child is to live is the best interests of the child.  The child’s wishes will be taken into account by the Court but these wishes do not ultimately decide where the child will live.  

To determine the child’s best interests, the Court must consider a number of primary and additional considerations which are stated in the Family Law Act including any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views.  The wish of a child is only one of many factors the Court considers when determining what is in the best interests of a child and the Court must look at all the factors set out in section 60CC of the Family Law Act and not just the child’s wishes.

With a teenager the Court has placed significant weight on the view that the child expresses, especially when the child is mature and able to articulate their wish and to justify that wish by explaining the basis for it.  This is more so as the child matures and gains a better understanding of the living arrangements following the parents’ separation, particularly living in separate households. Prior to the High Court decision in Bondelmonte v Bondelmonte in April 2018 it was difficult for a Court to disregard the expressed wishes of older teenagers.  The High Court’s decision confirms that a Court will only give limited weight or even ignore the views of a child where those views have been influenced by the parent that they are living with.  Whilst the child’s expressed wish is still a relevant and important consideration which is to be taken into account by the Court, the High Court has now determined that the big picture must also be looked at in terms of how the expressed wish of the child may impact on other considerations such as the relationship with the other parent and any siblings.  

Prior to the High Court decision in the Bondelmonte case the general view was that the Court could not make older children in family law proceedings live with a parent that they expressed a strong view that they did not wish to.  The High Court ruled that two boys aged 15 years and 17 years were not allowed to live permanently overseas with their father as they wished and in making that decision the High Court looked at what was in the overall best interests of the children including the disruption to their relationship with their mother and their sister.  The older boy had been living with his father for some time after his parents’ separation and the younger boy was dividing his time between the mother and father and the daughter remained living with the mother but spent weekends with the father.