When can the kids decide?

Although children’s wishes are relevant, they are not determinative. That is, children do not and should not have the responsibility for making their own decisions about their living and care arrangements after separation. It is for the parents to agree upon those arrangements or, if they are unable to decide between them, then the Court will determine what arrangements are best for the children taking into account their individual circumstances and that of their family.

In making its decision the Court must consider any views expressed by a child but will give those wishes such weight as it considers appropriate taking into account factors such as the child’s age, maturity and level of understanding and any other relevant matter, such as to the extent to which the child’s views may have been influenced by one or both parents. The child’s wishes can be relayed to the Court in evidence given by the parents and through the involvement of an expert psychologist and/or Independent Children’s Lawyer. The Court has a broad discretion in deciding what weight it will give to a child’s wishes in the circumstances of each individual case.

For example, in the recent High Court decision of Bondelmonte, contrary to the expressed wishes of two boys, aged 17 and 15, the Court ordered that the children return from New York to live in Australia, pending the final determination of the case. The father in that case had taken the boys on holiday to New York, with their mother’s consent, and in breach of previous parenting orders, the father then refused to return with the boys to Australia. The boys had been living primarily with their father before the trip to New York. A third child, the boys’ sister aged 12, lived with the mother. The mother sought an order for the boys to return to live in Australia (with the father if he chose to return or with friends, if that was what the boys wanted) until the father’s application to live permanently in the United States was finally determined. On hearing the case at first instance, the Trial Judge was “clearly of the view that in conversations that the father had had with the boys and in the lifestyle he was offering them, he was exerting influence on the boys’ choices” and the Judge was satisfied, “that the views expressed by the boys had been ‘contrived’ by the father”. The decision was appealed by the father unsuccessfully to the Full Court and then to the High Court.

It is generally thought that the Court is likely to give greater weight to views expressed by older children. There may be practical difficulties of “enforcing” Court ordered parenting arrangements on mid to late teenage children in particular (given their increased independence with the prevalence of mobile phones, access to funds and travel passes). However, the High Court has confirmed that the views expressed by a child, “are but one consideration of a number to be taken into account in the overall assessment of the child’s best interests,” noting that “children may not, for example, appreciate the long term implications of separation from one parent or the child’s siblings.” The High Court dismissed the father’s appeal and confirmed that the Trial Judge was entitled to discount the boys’ views, which the Court was satisfied had been influenced by the father’s conduct, and taking account additional factors including the father’s attitude toward his parenting responsibilities and the effect of the boys’ separation from their sister and mother.

It is clear that the Court must give proper, genuine and realistic consideration to any views which have been expressed by a child as well as any factors that the Court thinks relevant to the weight it should give to those views.

If you would like to know more about parenting arrangements post-seperation, please do not hesitate to contact a member of the Family Law team.