There is no clear age as to when a child can decide on their own accord who to live with. A general age, which is often alluded to by the courts is approximately 12 years old. However, this is certainly not a clear and fixed age. The age can be higher in the event that the child is of special needs and can be lower in certain circumstances of heightened maturity.
Section 60CC(3)(a) of the Family Law Act states that ‘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 must be considered.’ The court will assess a range of other factors when determining how much weight to give to the child’s preferences regarding living arrangements, including:
The child's maturity level;
The child’s understanding of the situation;
Whether the child’s decision regarding which parent they wish to live with is well informed; and
Whether the child has been influenced by either of the parents or other family members in making their decision.
One of the most common ways for a child to express their views is during an interview with a Family Report Writer. A Family Report is a document, which provides an independent assessment of the issues in the case and helps determine what arrangements would be in the best interests of the child/ren. In preparing a Family Report, the Family Report Writer will generally interview all parties, including the children, and observe the children’s interactions with each party. The child/ren will be given an opportunity to express their views and wishes but are not expected to do so whatsoever.
Please do not take this to be legal advice. It would be appropriate that you speak to our office to clarify what you should do in your particular set of circumstances. To arrange an obligation free and free 30-minute consultation, please contact our office on:
(03) 9005 8284
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