Older Children Can Decide Who They Live With, Right?

by Andrew Lind on 3 July, 19

The paramount consideration for a Court in making parenting orders is the best interests of the child.

The best interests of the child are determined through consideration of a number of matters set out in section 60CC of the Family Law Act 1975 (Cth), including:

“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.”

The High Court of Australia considered the views expressed by two children in the decision of Bondelmonte v Bondelmonte [2017] HCA 8.

The parties had three children: two sons and one daughter.

The two sons – aged 15 and 17 years – travelled with their father to New York for a holiday.

While in New York, the father decided that it would be in his best interests financially to remain there indefinitely. 

He told the mother that the two boys would remain with him. The mother filed an application that the two boys be returned to live with her in Australia.

Orders were made for the return of the two boys to Australia and the father appealed that decision to the High Court of Australia.

He argued that the primary judge did not give proper consideration to evidence that the boys expressed a desire to remain living with him in New York.

The primary judge considered the views expressed by the boys but noted a number of factors which were relevant to the weight to be attached to those views, including:

  • The conversations that the father had with the boys and the lifestyle he was offering them would have almost certainly influenced any views expressed by the boys.
  • The boys did not appear to have given any thought to other matters, including the effect of their separation from their mother and their sister.

In any event, the views expressed by the children were only one consideration to be taken into account in assessing what was in their best interests.

The High Court found that the approach of the primary judge provided no basis for concluding that he failed to consider the views expressed by the boys.

The appeal was dismissed and the children were returned to live with the mother in Australia.

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