Marino Law | Gold Coast Law Firm

But they are old enough to decide where they want to live aren’t they?

This would have to be one of the most common questions asked in parenting proceedings, particularly with older children. This is closely followed by, “what age can children decide where they want to live?”

The short answers to each of these questions are, no they can’t and 18.

The longer answer involves a consideration of many factors under the Family Law Act and in particular s60CC.

This question recently made it all the way to the High Court of Australia, when a Father was given leave to Appeal a decision of the Full Court of the Family Court, which required he return two children from the USA to Australia pursuant to The Hague Convention.

Leave to appeal to the High Court from decisions in the Family Court is rarely granted, and only when the issues at law are so complex or novel that it requires the consideration of the highest legal forum in Australia.

The decision of Bondelmonte v Bondelmonte [2017] HCA 8 arose from circumstances wherein a Father refused to return two children, aged 17 and 15 to Australia from the USA after what was to be a holiday with their Father. The Mother initially opposed the proposed holiday but subsequently agreed. However, a couple of days prior to their planned return the Father advised the Mother that the children wanted to stay with him in the USA and because the Father had also decided to remain there for work, he was retaining them there.

The Mother and Father had agreed to parenting Orders for the children which in effect allowed the children to have a say in when they saw each of their Mother and Father.

The trial judge ordered the children’s return, notwithstanding their expression of wishes. Amongst the reason for doing so was concern that the Mother/Son relationship had been damaged by the Father’s conduct and that the relationship would be irretrievably damaged if they did not return. The Mother accepted that the children could live with the Paternal Grandmother if they did not wish to live with her.

The Father appealed this decision and argued that the children’s wishes had not been given appropriate weight in all of the circumstances, taking into account, particularly, their age and the fact that at least one of them was almost an adult.
The Full Court of the Family Court held that just because the Trial Judge did not make Orders in accordance with the children’s wishes, it did not follow that he did not give them significant weight. The Full Court considered that the Trial Judge gave serious consideration to the children’s wishes but discounted them in circumstances whereby the Father had engaged in conduct which had seriously impacted the children’s views (in a negative way) of Australia and bolstered their desire to remain with him in New York.

The Father was chastised for failing to acknowledge with the children that he could return with them to Australia whilst the issue about their living arrangements was determined. In effect the Father placed the children in an untenable position of thinking that it was Mum vs Dad and Australia vs USA and that there was no in between.

The Full Court commented that the retention of children across national boundaries will almost inevitably involve the infringement of the legitimate claims of the members of the children’s immediate or extended family from whose custody or environment the child has been unlawfully take.

A court concerned with the welfare of children will be conscious of the irreparable damage which might be done to the child’s ties with those members of his or her immediate or extended family and with his or her homeland are severed whilst a determination is made about their long term living arrangements. The Full Court dismissed the Father’s Appeal, however with one dissenting decision that supported the Father’s position.

The High Court also dismissed the Father’s Appeal. It found that the Trial Judge appropriately considered the children’s wishes and simply not following them due to their ages did not lead the Court into error.

Our highest judicial body has confirmed that there is no age at which children can decide where they want to live or with whom. Children’s wishes are but one of many considerations and the reasons for the expression of those wishes will have a fundamental impact on the weight the Court gives to same. This is why it is of utmost importance that litigants in parenting disputes do not seek to interfere with the children’s natural views forming of their living arrangements nor their expression of wishes and explanation of their experiences. When in doubt, get expert legal advice.

The Family Law team at Marino Law can provide you with expert guidance through the complex issues of parenting disputes, particularly those involving children of older years. This advice and guidance will be practical, efficient and child focussed. If you need assistance in resolving your parenting dispute, if you have not proceeded to Court or if you are in the litigation process, contact Marino Law without delay.

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