When does a child get to make the decision as to who they live with?

Posted on Apr 10, 2017 by Samantha Miller   |   Categories: Family Law

This is a question which is asked all the time by parents following a separation, where arrangements for the children cannot be agreed.

Technically the answer is 18 as the Courts have the power to make Orders concerning all children regardless of their age.

Whilst the Court will take into account the age, maturity and expressed wishes of the child, it will not necessarily conclude that the child’s wishes are in line with their best interests.  The ‘best interests’ of the child being the overriding principle means that often Orders are made against the expressed wishes of a child.

The recent case of Bondelmonte v Bondelmonte [2017] HCA 8 highlights this principle. In this case the parents had been living separately in Sydney for some time.  There were Orders in place in relation to the two sons of the relationship, now aged 15 and 17, and the daughter, aged 12.  By agreement, the daughter lived with the mother and spent time with the father. The eldest son lived with the father and did not have extensive contact with the mother.  The younger son seemed to spend time with each parent.  There was still contact occurring between all three siblings.

In early 2016 the father took the boys to New York purportedly on a holiday. However, once there, he informed the mother that he intended to remain permanently with the boys in New York.  The boys had flown first class from Sydney to New York, and were obviously enjoying their life there as evidence was submitted that it was their wish to remain in the US with their father.

Despite this, the Court ordered that the boys return to Sydney with or without their father.  Alternative arrangements were put in place in the event the father decided to stay in the US and the boys did not wish to reside with their mother.

The rationale for going against the wishes of the children despite their ages included the following:

 

  1. The Judge considered that the actions of the father “have significantly prejudiced and almost certainly coloured any statements the boys may make whilst they are in New York”;
  2. The wishes of the younger son seemed to have been expressed in a blaze manner and he had not had regard to the effect of his decision on his relationship with his mother, sister and other family members; and
  3. The Judge must weigh several competing considerations of which the wishes of the child is only one.

 

The circumstances of the above case are unusual but they do demonstrate the principle that the Court can and will exercise its discretion against the wishes of a child even when it could be assumed that their age would require their wishes be complied with.

In practice, where parents live relatively closely to one another children reach an age where they tend to ‘vote with their feet’.  Orders in such cases may be considered relatively useless.

http://eresources.hcourt.gov.au/downloadPdf/2017/HCA/8