What Age Can a Child Decide Custody in Australia?

Why "Custody" Isn't the Right Word

Australian law replaced "custody" in 2006 with "who the child lives with" and "who the child spends time with." The law also distinguishes between parental responsibility (decision-making) and time arrangements (where the child physically stays). A child cannot "decide custody" because custody isn't a legal concept — but their views about living arrangements matter and are heard through proper channels.

How Children's Views Fit the Legal Framework

The Family Law Amendment Act 2023 (effective 6 May 2024) restructured how courts assess the best interests of the child. Section 60CC(2) now lists six non-hierarchical general considerations relevant to every parenting matter.

The six factors under section 60CC(2) are: (a) safety — what arrangements promote safety from family violence, abuse, neglect, or other harm; (b) child's views — any views expressed by the child, the factor directly relevant to this guide and a co-equal consideration; (c) developmental needs — the developmental, psychological, emotional and cultural needs of the child; (d) parental capacity — the capacity of each person with parental responsibility to provide for the child's needs; (e) relationships — the benefit to the child of maintaining a relationship with parents and other significant people, where it is safe to do so; and (f) anything else relevant to the particular circumstances of the child.

How Much Weight Do Children's Views Carry at Each Age?

While no legislated age threshold exists, case law and court practice reveal clear patterns. The weight given to a child's views generally increases with age — but maturity, not age alone, is what matters.

Under 5 years

Views are rarely sought directly at this stage. Family consultants observe the child's behaviour, attachment patterns, and responses to each parent rather than asking preferences. Under the 2024 ICL amendments, ICLs are not required to meet children under 5 (section 68LA(5A)(a)), though they may if appropriate. The child's emotional and developmental needs are assessed through observation of parent-child interactions, not interviews.

5 to 9 years

Children may express basic preferences during family report interviews using age-appropriate methods — drawing, play-based techniques, and simple conversations. Views are given limited weightbecause children at this age are more susceptible to influence, may express preferences based on immediate factors (which house has better toys, which parent has fewer rules), and often tell each parent what they think that parent wants to hear. Courts place more emphasis on the child's needs (stability, safety, education, relationships) than on stated preferences at this stage.

10 to 12 years

Views are given increasing weight. Family consultants typically interview the child directly. Courts begin to treat views more seriously when they are consistent, articulate, and appear to reflect the child's genuine experience rather than a coached position. This is the age range where courts start to more carefully examine whether views are the child's own or have been influenced by a parent.

13 to 15 years

Views carry significant weight. Courts are very reluctant to make or enforce arrangements against a teenager's clearly and consistently expressed wishes. In Farina & Naima [2022] FedCFamC1F 92, the court gave significant weight to a 13-year-old's expressed wish not to spend time with her father. The court found the child's views were "largely formed from her own experiences," and concluded that orders against her wishes would cause more harm than benefit. Courts also consider the practical futility of forcing a teenager into arrangements they strongly resist — coercion can damage the very relationship the orders are meant to preserve.

16 years and over

Practically very difficult to enforce arrangements against a mature teenager's wishes. Courts may decline to make orders at all, recognising that a 16 or 17-year-old will simply not comply. Courts often focus on facilitating therapeutic intervention or family counselling rather than imposing unworkable orders at this stage. Under section 65H, parenting orders automatically cease when the child turns 18.

How Children's Views Are Gathered

Children are never asked to "choose a parent" in a courtroom. Their views are gathered through professional channels designed to protect the child from the pressures of parental conflict.

Family reports

Prepared by qualified psychologists or social workers (family consultants) who interview both parents and the child separately. For younger children, they use age-appropriate techniques — drawing, play, and observation. For older children, more direct conversations about daily life, feelings, and preferences. The consultant also observes parent-child interactions in a structured setting. The report includes professional recommendations, though the judge is not bound by them. Court-ordered reports have no cost to parents.

Independent Children's Lawyers

Appointed under section 68L, an ICL represents the child's best interests — not necessarily the child's wishes. The ICL forms their own independent view. Since 6 May 2024: ICLs must meet children over 5 and give them an opportunity to express their views (section 68LA(5A)), unless the child does not wish to participate or exceptional circumstances apply. The ICL ensures the child's views reach the court, but may advocate for a different outcome if they believe it better serves the child's interests. A child cannot be compelled to express views (section 60CE).

Genuine Views vs Coached Preferences

One of the most difficult tasks for family courts is distinguishing between a child's genuine views and preferences that have been influenced or coached by a parent. Family consultants and ICLs are specifically trained to make this assessment.

Signs of genuine views include age-appropriate language, ability to elaborate on reasons with personal examples, consistent views across different settings and over time, views that align with observed behaviour and emotional presentation, and acknowledgement of positive aspects of both parents.

Signs of coached views include adult or legal terminology beyond the child's developmental stage, inability to explain or elaborate on stated preferences, views that mirror one parent's position verbatim, references to events the child did not personally witness, and anxiety about "saying the wrong thing."

Gillick Competence and Children's Decision-Making

The concept of Gillick competence — that children develop decision-making capacity individually, not at a fixed age — underpins how Australian courts approach children's views.

Origin: The UK House of Lords in Gillick v West Norfolk AHA [1986] established that children with sufficient understanding and intelligence can consent to medical treatment without parental permission.

Adopted in Australia: The High Court applied this principle in Secretary, Department of Health v JWB and SMB (1992) 175 CLR 218 (Marion's Case), holding that parental authority "diminishes gradually as the child's capacities and maturity grow."

In family law: While courts don't formally apply a "Gillick competence test" to custody decisions, the underlying principle operates in the background. Courts assess each child's maturity individually when deciding how much weight to give their views. Factors include the child's intellectual capacity and emotional maturity, understanding of the nature and consequences of the decision, ability to weigh competing considerations, and understanding of the broader impact on others.

Common Scenarios

"My teenager refuses to go to their other parent's house"

The parenting order remains legally binding. The resident parent has an obligation to positively encourage compliance — simply saying "they don't want to go" is not a defence to a contravention application under section 70NAC. Continue to positively encourage the child to comply, document your efforts (text messages, conversations), seek professional help — a child psychologist or family therapist — and consider Family Dispute Resolution to discuss varied arrangements. If needed, apply to vary the orders; the court may adjust them to reflect the teenager's maturity and views.

For a 14+ year-old with consistent views based on genuine experience, courts are very unlikely to order forced compliance. More likely outcomes include therapeutic work, gradual reintroduction, or varied orders.

"My 8-year-old says they want to live with me"

The court will listen, but an 8-year-old's preference is typically given limited weight. At this age, children are more susceptible to influence, may base preferences on short-term factors, and may lack capacity to understand long-term consequences. The family consultant will assess whether the preference is genuine, consistent, and informed. The court will give more weight to the child's needs than to their stated preference.

Common questions