Can Children Decide Where They Live? New Family Law Rules
Changes to Australian Family Law are reshaping the way courts handle parenting arrangements, sparking questions from many parents: Can children now choose where they live? Understanding how the Family Law Act 1975 applies under recent amendments is essential for any separated parent.
In this guide, we explore whether children can decide who they live with under the new Family Law rules, the key factors courts consider, and what this means for Australian families.
How the Family Law Act 1975 Protects Children’s Rights
The Family Law Act 1975 is the foundation of Australia’s Family Law system, governing divorce, parenting arrangements, and property settlements. Its primary focus in parenting disputes is the best interests of the child.
Under the Family Law Act, courts consider a range of factors when making decisions about where a child should live. While a child’s views are taken into account, they are only one of several considerations.
The Role of Children’s Wishes in Parenting Matters
A common misconception is that children can simply choose where they want to live once they reach a certain age. In Australia, there is no specific age at which a child can make this decision independently.
Instead, courts must give proper weight to a child’s views depending on:
Their age and maturity
Their ability to understand the situation
Whether their wishes appear genuine and not influenced by others
For example, the views of a 16-year-old may carry more weight than those of a 9-year-old, though every case is assessed individually.
What the New Family Law Changes Mean
Recent amendments to the Family Law Act aim to simplify proceedings and make them less adversarial, particularly in relation to parenting disputes.
Greater emphasis on children’s safety and protection from harm.
Enhanced mechanisms to allow children’s voices to be heard appropriately through independent children’s lawyers or expert reports.
While these changes reaffirm the importance of listening to children, they do not give children the power to make the final decision about where they live.
How Courts Determine Parenting Arrangements
When deciding where a child will live, courts focus on two primary considerations:
The benefit of the child having a meaningful relationship with both parents.
The need to protect the child from physical or psychological harm, including from abuse, neglect, or exposure to family violence.
Other considerations include:
The child’s views, maturity, and understanding.
Each parent’s capacity to provide for the child’s needs.
The practicalities of the child spending time with each parent (such as distance and schooling).
The effect of any changes on the child’s emotional wellbeing.
Is Mediation Required Before Court?
In most cases, parents are required to attempt family dispute resolution (FDR) before applying to court, unless exceptions apply (such as family violence or urgency).
Through mediation, parents can often reach a mutually agreeable arrangement that respects the child’s wishes without going to court.
Tips for Parents Navigating Parenting Disputes
Here are key tips if you’re facing parenting negotiations under the Family Law Act:
Listen to your child’s views without pressuring them.
Be mindful of their emotional needs and avoid involving them in parental conflict.
Seek legal advice early to understand your rights and obligations.
Consider child-focused mediation or counselling services.
When Should You Seek Legal Help?
If your matter is complex, involves safety concerns, or if communication with the other parent has broken down, it’s essential to obtain legal advice from an experienced Family Law professional.
Legal guidance can help ensure your child’s best interests are protected while complying with the Family Law Act’s requirements.
While children in Australia do not have the legal right to independently decide where they live, their opinions are a significant factor under the Family Law Act 1975. Recent changes emphasise listening to children’s voices in a safe, supportive way—but ultimately, parenting decisions must prioritise their long-term wellbeing.
At New South Lawyers, our compassionate Family Law team understands the complexities of parenting disputes. Whether you’re seeking parenting arrangements or mediation, we’ll guide you through your options under Australian Family Law.
Contact New South Lawyers today for personalised advice and take the first step towards a more secure future for your family.
