Family Law: Do Children have a say in which parent they wish to live with after their parents separate? The answer may surprise you.

When deciding the living arrangements for children of separated parents, one of the factors that the Court is required to take into consideration is what the child says about where they would like to live.

In doing so, the Court must also have regard to the age and maturity of the child and how much weight they will attribute to the child’s view, in all of the circumstances.  In other words, generally the older and more mature the child, the more the Court will take into consideration the child’s view, but will also factor in all other relevant aspects of the case.

There can, however, be exceptions to this.  in the recent Family Court case of Bondelmonte & Bondelmonte [2016] FamCAFC 48, the full Court Ordered for the return of two boys aged 15 and 17 from New York.   The parents were both living in Australia with the children and it was agreed that the children could choose which parents they wanted to live with.

The father took the 15 and 17 year old boys on a trip to New York and decided to stay and live there and the boys decided to stay with him. The mother then applied to the Court in Australia for the boys to be returned. The boys expressed the view that they wished to stay with their father in New York.

The Court Ordered that the boys be returned to Australia pending final determination as to whether they would permanently relocate to the United States. The father appealed that decision on the basis that the Court had failed to take into consideration the views expressed by the boys to remain in New York.

The Court dismissed the father’s appeal on the basis that the Court is required to give consideration to the views expressed by the child, but in the context of the overall best interests of the child being met. In this case the Court had concerns that the boys had been ‘bedazzled’ by the opportunity to live in New York, and did not have regard to the possible loss of their relationship with their mother and their sister.