Do children have a say in parenting cases? Lawyer explains

In Australian parenting cases, children can have a say. That much is clear. But the more accurate answer is that yes, children’s views matter, but the weight given to those views depends on the individual child and the circumstances of the case.

That is often where confusion starts. Many parents assume a child can simply choose where they want to live once they reach a certain age. Others assume children are never heard from at all. Neither view is right.

In the Federal Circuit and Family Court of Australia, children’s wishes are one factor among a number of factors the court considers when deciding what arrangements are in a child’s best interests. Age matters. Maturity matters. Intelligence matters. The strength and reasoning behind a child’s wishes matter too.

For families dealing with a parenting dispute, understanding how this works can make the process far less mysterious.

Children’s wishes are relevant, but not decisive

The starting point is simple. Children do have a voice in parenting proceedings, but they do not get to make the final decision. The court does.

That distinction is important. A parenting case is not a referendum run by the child. Nor is it a process where the child’s views are ignored. Instead, the court considers the child’s wishes as part of the broader question of what orders are in that child’s best interests.

This is reflected in the Family Law Act, which requires the court to take relevant matters into account in parenting proceedings, including the child’s views.

So the answer is not a flat yes or no. It is more nuanced than that.

What affects how much weight the court gives a child’s wishes?

The main considerations are:

• Age
• Maturity
• Intelligence
• The strength of the wishes expressed
• The reasons behind those wishes

As children move into their teenage years, or even close to their teens, their wishes often carry greater weight. That is because older children are generally better able to form, explain and maintain their own views.

By contrast, very young children may not be able to express a clear or settled preference. Even where they do, the court may place less weight on it because of their level of maturity and understanding.

This does not mean younger children are irrelevant. It simply means the court must assess what can reliably be drawn from what they say, how they say it, and the context in which those views are expressed.

There is no magic age in Australia at which a child suddenly gets to decide. That is one of the most persistent myths in family law. A 12 year old is not automatically in charge of the outcome. Nor is a 14 year old, or even a 16 year old. The older and more mature the child, the more influential their views may become, but the court still decides the case.

How the court usually learns what children think

In most parenting matters, children do not go into a courtroom and tell a judge what they want. That happens only rarely.

Instead, the usual process involves professional reports prepared during the case. These reports are one of the main ways the court receives information about a child’s wishes and the reasons for them.

Child impact reports

Earlier in a parenting case, there is often a child impact report. This report helps the court understand the issues affecting the child and the family dynamic at that stage of the proceedings.

As part of that process, the consultant may speak with the children. That conversation can help identify what the children are saying, how firmly they hold those views, and whether there appear to be particular influences or concerns shaping them.

Family reports

Later in the proceeding, there is often a more detailed family report. This report is usually prepared by a family consultant or other qualified professional and can be highly influential.

The report writer will often, although not always, speak with the children. Where that happens, the report may record:

• what the child says they want
• why they say they want it
• how mature or considered those views appear to be
• whether the views seem independent, tentative, fearful, or strongly held

The report writer may also comment on how much significance should be attached to those wishes in the broader family context.

This is often the practical heart of the issue. It is not only about what a child says. It is also about why the child says it and whether the surrounding circumstances support the reliability of that view.

Section 60CC and the child’s best interests

Children’s wishes are not merely a courtesy or an informal consideration. They are recognised in the legislation.

Section 60CC of the Family Law Act identifies matters the court is to take into account in determining what is in a child’s best interests in parenting matters. One of those matters is the child’s views.

That gives children’s wishes an important legal footing. But again, it does not mean the court must do what the child asks. It means the court must consider those views properly and weigh them with the other relevant circumstances.

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The role of the independent children’s lawyer

Another important part of the process is the independent children’s lawyer, often called an ICL.

An independent children’s lawyer is appointed to represent the interests of the children in the court process. That does not mean the lawyer simply acts on instructions in the same way a lawyer might for an adult client. The role is broader. The ICL assists the court by putting forward what arrangements appear to be in the child’s best interests, based on the evidence.

As of 2025, the Family Law Act requires an independent children’s lawyer to meet with the child, although there are exceptions.

That change is significant. It strengthens the expectation that children’s voices will be heard more directly within the legal process, while still protecting them from being placed in the middle of the dispute in an inappropriate way.

The ICL may rely on discussions with the child, the family reports, school material, medical evidence, and other relevant information when making submissions to the court.

This is one of the main avenues through which a child’s perspective reaches the judge.

Do judges speak directly with children?

Sometimes, but not often.

There are cases where a judge may speak directly to a child. There are also cases where a child may be allowed to give evidence. But those situations are very much the exception rather than the rule.

If a child is to give evidence, that generally requires the leave of the court. The court is cautious about involving children in that way because of the obvious risks. Parenting disputes are already stressful enough without placing a child in the witness box unless there is a compelling reason.

For that reason, most cases rely on the safer and more conventional channels:

• child impact reports
• family reports
• submissions by the independent children’s lawyer

That approach aims to ensure the child is heard without burdening them unnecessarily.

Why the child’s reasons matter as much as the wish itself

One child might say they want to live mostly with one parent because that parent sets fewer rules. Another might say the same thing because they feel safer, more settled, and better supported there. Those are very different situations.

That is why the court looks beyond the headline preference.

A stated wish is only one part of the picture. The court also considers whether the child understands the implications of what they are saying, whether the view is consistent over time, and whether it appears to be genuinely their own.

Older children with firmly held, well-reasoned views are often in a stronger position to influence an outcome than younger children expressing a passing preference.

A common misunderstanding parents should avoid

One of the biggest mistakes in parenting disputes is trying to recruit a child into the case.

When parents focus too heavily on getting a child to state a preference, the result can be harmful and counterproductive. Courts and report writers are alert to the possibility of pressure, loyalty conflicts, and coaching. If a child’s views appear to be influenced by one parent, that can reduce the weight placed on those views.

The better approach is to allow the proper court processes to do their work.

Where legal advice is needed about parenting arrangements, property disputes, mediation, or other family law issues, Bruce Provan’s experience in these areas is set out on his profile page.

The practical takeaway

Children do have a say in parenting cases in Australia. But whether that say carries little weight, moderate weight, or substantial weight depends on the child’s age, maturity, intelligence, and the strength and quality of their wishes.

Usually, those wishes are not presented directly to the judge by the child. They are conveyed through professional reports and, where appointed, through the independent children’s lawyer.

That system is designed to strike a balance. It recognises that children’s voices matter, while also protecting children from the strain of being drawn too deeply into litigation between their parents.

Anyone needing advice about a parenting case can obtain further guidance through Page Provan’s contact page. For broader procedural information about family law and the courts, the Federal Circuit and Family Court of Australia and the Australian Government Attorney-General’s Department provide current public information.

The short answer, then, is yes. Children do have a say. The longer answer is that the court listens carefully, but always through the lens of what is best for the child.