There is no doubt that children (of any age) can be profoundly affected by the breakdown of their family. It is natural and reasonable for parents to want to provide their children with comfort and reassurance about their future care and living arrangements. It can be challenging for parents to agree upon arrangements that they consider are in the best interests of their children when the children have expressed strong wishes or views about where they want to live or how much time they want to spend with the other parent. Separated parents often ask at what age their children can make their own decisions.

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.

Related Articles

View All
Family Law / Family Law Advice

Proposed amendments to the Family Law Act – Financial Matters – Family Violence and property settlements – Part 2

This is part 2 of the blog series of the proposed amendments to Family Law Act regarding Financial Matters Part 1...
Read More
Family Law / Family Law Advice

Proposed amendments to the Family Law Act – Financial Matters – Part 1

Background This is a 2 part blog series on the proposed amendments to Family Law Act regarding Financial Matters Part 1...
Read More
Commercial Law / Family Law

2023 Mid Year Promotions: Sarah Gilcrist and Eliza Panckridge

Sarah joined TLFC in January 2022 and quickly became an integral part of the Commercial Team, specialising in lending...
Read More
Adverse Possession / Commercial Law / Family Law

2024 Best Lawyers list out now

Tisher Liner FC Law are proud to announce that this year three of our Principals have been selected by their peers for...
Read More
Wills, Estates & Probate / Family Law / Family Law Advice

The effect of Divorce on a Will

Separating or getting a divorce  Time to make a new Will! There are some couples who, whilst separated, are still...
Read More
Family Law / Family Law Advice

The Critical Incident List: what is it and how does it work?

What is the Critical Incident List The Critical Incident List (“the List”) is a specialised, fast-tracked list...
Read More
Family Law / Family Law Advice

Intervention orders: How do I apply for or respond to an intervention order?

What is an intervention order Intervention orders are legally enforceable orders seeking to protect a person and their...
Read More
Family Law / Family Law Advice

Child Impact Reports – what are they and what benefit do they provide?

When additional information is required, then the parties may agree to attend upon or an order may made by the Court...
Read More
Family Law / Family Law Advice

Grandparents and parenting – do I have any right to see my grandchild?

If you are a grandparent and your relationship with your children become fractured, this may impact on the time that...
Read More
Family Law / Family Law Advice

May is Family Violence Prevention Month: Who should you contact?

Unfortunately, the breakdown of a relationship and separation is a time of increased risk of family violence   If...
Read More
Family Law / Family Law Advice

Parenting arrangements for Mother’s Day or other special occasions

Blended families are now far more common and some children have more than one influential female in their lives There...
Read More
Family Law / Family Law Advice

VCAT rules on landmark test case on ‘reasonable costs’ claimable by Owners Corporations

On 1 December 2021, the Owners Corporations and Other Acts Amendment Act 2021 (“Amending Act”) came into force The...
Read More