By Cassandra Selvaggio, Senior Associate
Co-parenting with your partner after separation can sometimes be challenging and stressful, even more so when your child has their own views about what they want.
It is understandable to ask, “At what age can my children decide where they want to live?”
Until children turn 18 and are then adults, there is no fixed age at which their wishes automatically rule.
As children grow older and more mature, the Court usually gives more weight to their views. Every child and their family circumstances are different. A child’s wishes are one, and sometimes a very important one, of a whole range of things need to be considered for your family.
The Court’s primary consideration is the child’s best interests. When determining appropriate parenting arrangements, the Court must consider:
- The benefit to the child of having a meaningful relationship with both parents.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
Additional considerations include the views expressed by the child, the child’s level of maturity when expressing those views, the nature of the child’s relationship with each parent, the extent to which each parent has taken the opportunity to be involved in the child’s life, make decisions about major long-term issues for the child, and support the child. These are only some of the factors the Court considers. Ultimately, the Court has a wide discretion as to what importance to give to each consideration.
The importance of a child’s wishes was considered by the High Court of Australia in Bondelomonte and Bondelmonte & Anor [2017] HCA 8.
The facts
The parents separated in 2010 and parenting orders were made in 2014 for the 3 children – two boys then aged 15 years and 13 years, and their younger sister then aged 10 years.
After separation, the eldest boy lived with his father and was unfortunately basically estranged from his mother. The younger boy lived mainly with his father and also spent time with his mother. The daughter lived mainly with her mother and also spent time with her father.
In January 2016, the father took the boys on a two-week holiday to New York with the mother’s consent. At that time, the boys were aged 16 1/2 years and 15 years.
While in New York, the father’s solicitor informed the mother that the father had decided to remain in the United States indefinitely and the boys had decided to stay there with him.
Interim orders
The mother filed an urgent application in the Family Court of Australia (as it then was) seeking orders that the boys be returned to Australia and that they live with her.
An order was made for the parents and the children to meet with a Family Consultant for a family report. The report indicated that the boys expressed a wish to remain living with their father in New York.
The Trial Judge accepted that the boys had clearly and definitively expressed that they wished to remain living with their father in New York. However, the Judge formed the view that the boys’ wishes were influenced by the father’s action of taking them to New York.
The Trial Judge found it was in the boys’ best interests to return to Australia pending a final determination about whether they will continue to live in Australia or move to the United States with the father. The interim orders included provision for alternative living arrangements if the boys did not want to live with their mother, such as living with friends of the mother who the boys knew well.
The Appeal
The father appealed the interim orders to the Full Court of the Family Court. He contended that:
- The Trial Judge made interim orders that were contrary to the boys’ expressed views.
- The Trial Judge was required to give, “proper, genuine and realistic consideration” to the views of the boys in relation to the interim orders.
- The trial judge was wrong to discount the boys’ views about remaining in New York because the Judge had formed an adverse view of the father’s actions.
The father’s appeal was dismissed by the Full Court of the Family Court however, special leave was granted to the father to appeal to the High Court.
The High Court
The High Court dismissed the Father’s appeal. In summary, the majority in the High Court held:
- The Court is not, of itself, required to ascertain the views of the children.
- An Independent Children’s Lawyer must inform the Court of any views expressed by the children.
- When the Court is informed of the children’s views, it must give genuine and realistic consideration to those views. However, they are but one of several considerations to be taken into account in the overall assessment of a child’s best interests.
Conclusion
The case of Bondelmonte demonstrates that while a child’s views are important, they are not the determining factor in parenting matters. This is true, even for teenage children who can express their views clearly just as the boys did in this case.
This case also shows that the Court is less likely to place significant weight on a child’s views where there is evidence that a parent has influenced them through their words or actions. This confirms the established principle in family law that parents should not involve their children in co-parenting conflict and must facilitate and encourage a relationship between the children and the other parent.
If you are having difficulties co-parenting after separation, or are considering separating, and would like advice, please call us on (03) 8672 5222 to arrange a time to meet with one of our family lawyers.
