When can children decide where they live?

Confused Child

As Family Lawyers, a question we are constantly asked is “when can my children decide who they want to live with?”

A common misconception is that there is a “magic age” (sometimes twelve or fifteen, for example) at which children can decide, irrespective of the views of the parents.

This is not the case, and where Parenting Orders are made by the Court, the Orders are applicable to the child in question until they attain the age of eighteen years.

However, when the Court considers the making of parenting Orders, and determining what is in a child’s best interests, the Court must consider (among other things) “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” (Section 60CC(3)(a) of the Family Law Act).

In the recent High Court case of Bondelmonte & Bondelmonte & Anor (2017) HCA 8,  the two children in question were boys aged nearly 15 and 17. Their father had taken them to New York on a holiday and then decided to remain living there with the children, in direct and flagrant breach of a Family Court Order in Australia. The father’s primary argument was that the children had expressed the desire to remain living in New York with him.

The primary Judge ordered that it was in the best interests of the children to return to Australia pending a final determination as to whether they should remain living in Australia or move to the United States. In reference to the expressed views of the teenage boys involved, His Honour acknowledged those views, but stated that “the weight that I place upon those expressed views are weakened by the circumstances which have been contrived by the father” and 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”.

The father appealed the decision principally on the basis that the primary Judge had wrongly discounted the children’s expressed views because of an adverse view that the Judge had taken about the father’s conduct.

The appeal was wholly unsuccessful and the High Court said that the primary Judge had not erred in exercising his discretion to make the Orders, and had properly considered the views of the children, amongst the other considerations required under the legislation. The Judge also considered other factors which the teenage boys did not appear to have given any thought to, such as the effect of their separation from their mother and sister who remained in Australia.

In addition, the High Court said that “it would have been remarkable if the primary Judge had not commented upon the father’s conduct” which not only breached Court Orders but “had the potential to undermine the possible relationships that family members might have in the future”.  It was appropriate to balance the weight given to the children’s views against the clear exertion of influence by the father over impressionable teenage boys.

In summary, while it is important for the Court to consider the views expressed by children, it is not obliged to make Orders in line with those views, because what a child “expresses” is not necessarily in their best interests. In addition, there are multiple factors which can cause a child to express a certain view, including their age, maturity, level of understanding and the direct (or indirect) influence of one or both parents.

Shelley O’Connell