A child’s wishes matter in Australian family law — but they’re not the deciding factor, and there’s no age at which a child simply gets to choose. This is one of the most commonly misunderstood areas of family law, and it’s worth unpacking carefully.
How does the court treat a child’s views?
Under section 60CC of the Family Law Act, the views of the child are one of several factors the court takes into account. The weight given to those views depends on:
• The child’s age — there’s no magic number, but teenagers’ views carry more weight than those of younger children
• The child’s maturity and ability to understand what they’re expressing
• Whether those views appear genuine or have been influenced by one parent, courts are alert to parental coaching
How are a child’s views actually heard?
Children don’t give evidence in court or appear before a judge. Instead, their views are typically gathered through:
• A family report prepared by an independent psychologist or social worker, who interviews the child and both parents
• An Independent Children’s Lawyer (ICL), appointed in more complex cases, who advocates for the child’s best interests — not necessarily what the child wants
Why a child’s preference isn’t the final word
Even a strong and clearly expressed preference won’t override safety concerns or the court’s assessment of what genuinely serves the child’s long-term interests. A teenager who says they want to live entirely with one parent because the other parent enforces homework and bedtimes won’t necessarily get that outcome. The court looks beyond immediate preferences to longer-term wellbeing — and to the child’s right to maintain a meaningful relationship with both parents.
Questions to consider
• How old are the children, and have their preferences ever been formally recorded — in a family report or otherwise?
• Is there any concern that one parent may be influencing or coaching the child’s stated preferences? What evidence exists?
• If the child’s views are strongly and consistently held, would appointing an Independent Children’s Lawyer be appropriate in this matter?