A very common question we are asked is when does my child get to decide who they live with or how often they see someone such as the other parent?
A common misconception is a child gets to decide when they turn 12 years of age. The answer is there is no magical age (except for 18) when a child’s views become determinative, but they are taken into account by the Court.
In determining what parenting orders should be made for a child the Family Law Act 1975 (Cth) (“the Act”) says that the best interests of the child are the paramount consideration. As to how we determine what is in the best interests of a child there are various considerations but the one that relates to children’s views is Section 60CC(3)(a) of the Act which provides that the Court must consider:
“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”
Views of the children are commonly obtained from Court ordered expert reports called Family Reports. Pursuant to s.100B of the Act there is also a prohibition on calling evidence from a child as a witness without special permission from the Court (which is usually not given).
This area has been heavily litigated so the Court has offered some guidance for parents.
In R v R: Children’s Wishes [2000] FamCA 43 the Full Family Court said wishes of children should not automatically be followed but they should be taken seriously by giving them careful and detailed consideration. When validly held views by a child are to be departed from, a good reason should be shown for doing so but there is no rule that they must be followed. Views will be given weight depending on several factors including:
- The strength and duration of the views;
- The basis of the views;
- The maturity of the child; and
- The degree of appreciation by the child of the issues before the Court and the long-term implications of the Court following their views.
In the more recent case of Bondelmonte v Bondelmonte [2017] HCA 8, the High Court heard an appeal by a father against orders returning the two boys (aged 17 and 15) to Australia. The boys had defied the parenting orders in place by remaining with the Father in the USA. Their sister aged 12 remained with the Mother. The Father had paid for first-class flights to the USA and the boys were by all accounts having a luxurious time in New York. Unsurprisingly they expressed a clear view to remain in the USA.
In upholding that decision to return the boys to Australia, the Court noted that children’s views are not decisive and there needs to be a consideration of the level of understanding of what is involved in the choice they have expressed. Ultimately, the Court agreed the Father had influenced the views of the boys and the boys had not demonstrated they understood the gravity of being separated from their sister.
Children’s views are important, but they are not the end of the examination of what arrangements should be put in place for them. Careful consideration of the factors surrounding what the child is saying and legal advice is essential. If you require assistance in a parenting matter or other family law matter, please do not hesitate to contact our office on (02) 4944 3322.
