This is one of the most common questions that family lawyers are asked by parents who are separated.
The Family Law Act 1975 and case law does not define the age for when children can decide who they live with. Generally, Courts are more likely to give greater weight to adolescent children’s views and wishes, in light of their developmental maturity in comparison to younger children. This is consistent with the social science literature suggesting that adolescence is a period when children begin to forge their own identity and develop the ability to think independently. However, all family law matters are determined on a case-by-case basis and even the views of teenagers are not determinative.
The 2017 High Court case of Bondelmonte & Bondelmonte addressed issues of weight given to children’s views. This was a case involving a father who had taken his two teenage sons, aged almost 15 years and almost 17 years to New York for a two-week holiday. There were Court Orders in place in relation to the boys and also the parties’ daughter who was nearly 12 years old at the time. The older son was estranged from the mother. The younger son lived with the father but spent time with the mother. The daughter lived with the mother.
The father did not return the two older boys to Australia and decided that the children would remain living with him in the United States indefinitely. The mother then sought urgent Orders from the Court requiring that the children be returned to Australia and for them to live with her.
The trial judge ordered that the boys be returned to Australia and pending the decision as to who they should live with, the boys would stay with a family friend as they did not wish to live with the mother.
The father appealed this decision. One of the bases of the appeal was that proper consideration was not given to the boys’ views.
The High Court dismissed the father’s appeal and found that the trial judge had taken into consideration each of the boys’ wishes. Despite the Court not being obligated to consider children’s views in each instance, they are a relevant factor to consider, amongst others. The High Court found that the trial judge had considered the children’s views, as well as the longer-term implications of the boys’ separation from their mother and sister.
Ultimately, the Court will make Orders that are in the best interests of the child. Bondelmonte & Bondelmonte confirms that whilst children’s views and wishes are an important consideration, they are only one of many factors that the Court will take into account. This case also serves as a reminder that there are circumstances where even teenagers’ views and wishes are not determinative of the Court’s decision.