When Children Express Preferences About Where They Live

Do children get a say in custody decisions?

Yes, but with important qualifications. Under Section 60CC(3)(a) of the Family Law Act 1975, one of the additional considerations courts must take into account is "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."

In practice, children's views are one input into a broader assessment — not instructions the court must follow. Courts are deliberate about language: they speak of giving weight to children's views, not their wishes or preferences. This reflects that what a child expresses is information to be weighed, not a direction to be executed. The responsibility for the decision remains with the court, protecting children from the burden of feeling they determined the outcome.

Age and maturity: how weight changes

There is no "magic age" at which a child's views become determinative. Australian courts explicitly reject the notion that children of a certain age automatically get to decide where they live. However, age and maturity are significant factors in determining how much weight to give to expressed views.

For younger children (generally under 10), views are typically given less weight given their developmental stage, susceptibility to influence, and tendency to make decisions based on immediate factors. For older children (generally 12 and above), views are generally given greater weight — the child is better able to articulate reasoned views, and the court recognises practical difficulties in enforcing orders against a teenager with strong, consistent views.

Courts assess maturity individually, recognising that chronological age is not the only indicator. Factors include the ability to understand consequences, consistency of views over time, quality of reasoning, emotional regulation, understanding of both parents' perspectives, and independence of thought from parental influence.

How courts hear children's views

Courts use several mechanisms to hear from children in ways designed to minimise trauma and ensure views are expressed freely. Children do not typically appear in court or give evidence directly. Instead, their views are conveyed through professionals trained in child-inclusive practices.

Family reports

Family reports are prepared by family consultants — psychologists or social workers appointed by the court. The consultant interviews both parents, the children, and sometimes other significant people. When speaking with children, they use age-appropriate techniques to understand the child's views without leading or pressuring them. Critically, the family consultant also assesses whether expressed views appear genuine, influenced, or inconsistent with the child's observed behaviour and emotional state.

Independent Children's Lawyer (ICL)

In some cases the court appoints an Independent Children's Lawyer to represent the best interests of the child. The ICL meets with the child and forms their own view about what orders would be in the child's best interests. While they convey the child's views to the court, they are not bound to advocate for what the child wants if they believe something different is in the child's best interests. The ICL acts as the child's representative but focuses on best interests, not simply acting as the child's "mouthpiece."

Judicial interviews

In rare cases, a judge may choose to meet with a child directly in private chambers — not in the courtroom — handled sensitively. Judicial interviews are uncommon and typically reserved for older children where the judge considers it appropriate and in the child's interests. Parents cannot insist on a judicial interview; this is entirely at the court's discretion.

Coaching and influence: assessing authenticity

Courts and family consultants are highly attuned to the possibility that children's expressed views have been influenced by a parent, whether deliberately or unconsciously. Assessing the authenticity of children's views is a critical part of the process.

Family consultants look for indicators that views may not be genuinely the child's own: using adult language or legal terminology, rehearsed or scripted-sounding responses, views that mirror one parent's exact position, inability to give reasons or elaborate, strong views inconsistent with observed behaviour, denigration of one parent without personal experience, views that suddenly change before court events, and visible anxiety about "saying the wrong thing."

While coaching is problematic, courts understand that parents cannot completely shield children from the separation process. Appropriate behaviour includes: telling children that someone will speak with them about their views; reassuring them they can be honest and will not get in trouble; emphasising that both parents love them regardless of what they say; and not discussing court proceedings or asking what they said to professionals afterwards.

When views are given less weight

Even clearly expressed views from older children may be given reduced weight in certain circumstances. Courts recognise that what a child articulates is not always what is genuinely in their best interests.

• Parental alienation concerns — where there is evidence that a child has been subjected to persistent negative messaging about a parent, courts may find expressed views are a product of alienating behaviour rather than genuine sentiment. Following the child's stated preference in such circumstances could reinforce harmful dynamics.
• Developmental or psychological concerns — if a child has developmental delays, mental health issues, or is in a particularly vulnerable emotional state, courts may be cautious about the weight given to expressed views. This is not to dismiss the child but to ensure decisions account for their particular vulnerabilities.
• Views based on avoidance of appropriate boundaries — sometimes children express a preference for the household with fewer rules, less homework supervision, or more permissive parenting. Courts recognise that children preferring less structure does not mean such an environment is in their best interests.
• Loyalty conflicts and guilt — children caught in loyalty conflicts may express views designed to protect or please a parent they perceive as more vulnerable or demanding. Courts are alert to views that may stem from a child's sense of responsibility for a parent's emotional wellbeing.

Balancing views with best interests

Ultimately, children's views are one factor in the broader best interests assessment. The primary considerations under Section 60CC remain the child's safety and the benefit of having a meaningful relationship with both parents. Expressed views must be weighed alongside all other relevant factors.

Factors that tend to support giving greater weight to a child's views include: an older, mature child; consistent views over time; views based on genuine experience; and reasoned, articulate expression. Factors that reduce the weight include: evidence of parental influence; views that would harm long-term interests; views based on avoidance; and inconsistent or fluctuating preferences.

For parents navigating these issues: do not ask children to choose — this places an inappropriate burden on them. Do not dismiss children's views — they need to feel heard. Focus on supporting the child's relationship with both parents rather than winning the child's allegiance. Consider professional child-focused therapy to help children process the separation constructively.

Common questions