At What Age Can A Child Decide Custody?
Parenting Arrangements – Children’s Views
Many clients in conflict about the proper parenting arrangements for their children following separation try and justify their views of parenting by basing their decisions on their children’s expressed views.
Section 60CC(3)(a) of the Family Law Act specifically requires the Court, when considering what is in the child’s best interests (and therefore who they live with and how much time they spend with the other parent), to consider ‘any views expressed by the child and any factors (such as the child’s maturity or level of understanding)’.
The Court has long held that children’s wishes are ‘important and proper and realistic weight should be attached to any wishes expressed by children’ (see, for example, Harrison and Woollard  FamCA 30).
That being said, the child’s level of maturity and level of understanding plays a significant role in determining the weight to be allocated to the child’s views.
The Views of 17 and 15 year-old Boys
In the matter of Bondelmonte  HCA 8, the High Court was to consider the wishes of two boys, 17 years old and 15 years old in the context of a parenting dispute where the boys’ father took both for a holiday in New York to live with him, and refused to return them to their mother who remained at home in Australia with the third child, a daughter, 12 years old.
The boys were flown by the father in business and first class on 14 January 2016. By 25 January 2016, the father decided it would be in the father’s financial interests to remain in the United States, rather than to return to Australia. On 29 January 2016, the father, through his lawyers, advised the mother that the boys would be living with him in the United States.
The mother filed an application in Australia for the return of the boys, pursuant to existing Parenting Orders.
The Father’s evidence was that both boys had expressed a desire to live with the father. Before the father’s decision to remain in New York, the elder boy had been living with the father for some time after his parents’ separation and was effectively estranged from the mother, although she had attempted to maintain contact with him. The younger boy was living with the father, although he divided his time between the mother and father; and the daughter remained living with the mother but spent weekends with the father.
Whilst there was not an official Family Report by the time of the appeal to the High Court, the High Court held that ‘the father’s flagrant disregard of the parenting orders was a matter relevant to the child’s best interests under s 60CC(3)(i). It evinced an attitude towards the responsibilities of parenthood that, if left unchecked, would likely send a poor message to boys who, on the evidence, were highly impressionable’.
Primary Judgement Upheld by the High Court
The primary judge, Justice Watts, granted the mother’s application for the return of the boys. Judge Watts doubted the utility of any report as to the boys’ views whilst they were living under the influence of the father in New York. His Honour said that “the weight that I place upon those expressed views are weakened by the circumstances which have been contrived by the father“.
His Honour also had regard to the evidence from the mother that the daughter had become increasingly upset and was repeatedly asking “when are the boys coming back?“. He observed that, in his text messages, the younger boy appeared to have “dismissed the roots that he had in Australia and his friends at school and other connections that he has left behind in a quite blasé manner. He does not mention his sister’s relationship with him.”
The High Court upheld the primary Judgement and dismissed the father’s appeal.
Take Home Points
In this case, even though the children were both quite advanced in age (17 and 15), they were both ‘highly impressionable’ and persuaded by the father’s affluence. Their wishes completely disregarded their relationship with their mother and their 12-year-old sister in Australia.
Accordingly, their alleged wishes to remain with the father were held by the Court not to be in their best interests and they were required to return home to Australia.
In light of the mother’s evidence about the 12-year-old daughter’s distress at losing her relationship with her elder brothers and the 15-year-old’s blasé dismissal of his Australian Roots and important relationships, it was quite evident that, despite his advanced age, he did not demonstrate the level of maturity and insight into what was in own best interests.
When determining parenting matters, it is important to secure sound advice from an experienced Australian Family Lawyer.
JosephDavid Lawyers are Accredited Specialists in Family Law Parenting disputes.
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