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Micalef & Micalef 2014. FCCA 119

Two brothers aged 14 years and 11 years 3 months lived with their mother and expressed a wish to live with their father, with the mother opposing their wish (child’s wishes).

Evidence was given that the older boy expressed concerns to the father but not to the mother about being bullied, and the father had not relayed these concerns to the mother, and the mother alleged this information was kept secret from her as part of a campaign to remove the son from her care rather than to give her an opportunity to address the concerns. The son reported that his mother did not listen to him. The son reported that the mother had exaggerated the father’s faults, resulting in the son reducing his trust in her. The son expressed thoughts to both parents of running away and of jumping from a cliff.

The mother reported that the older son was a follower and was easily influenced by his father.

A family consultant reported that the mother expressed extremely acrimonious sentiments towards the father. The family consultant reported that the younger son showed empathy for his brother’s well-being, was conflicted about where to live, had considered living separately from his brother but would be very sad if they were separated, and was very concerned about his mother’s likely reactions to their living with the father (sibling separation).

The judge found that:

the older boy had expressed a strong belief and a wish to live with his father for two years, had expressed clear and consistent views, was not impulsive or reactive, and was influenced by his developmental needs and by his relationships with both parents (capacity to decide)
both children wanted to maintain a positive meaningful relationship with both parents
the mother’s longstanding poor attitude towards the father had brought about the request for a change of accommodation
the mother was quite unable to acknowledge the validity of the children’s expressed wishes
both sons showed sufficiently maturity and had a sufficient level of understanding to express a genuine wish, and their wish was not induced by the father (child’s wishes)

The judge identified the following topics as relevant to a decision about living arrangements:

the relationship between each child and each parent and their extended families
likely effect of changes to the living circumstances
likelihood of any adverse effect of not implementing the wishes of the children
practical difficulties
weight to be given to the wishes of the children and the reasons they gave
advantages and disadvantages of each proposal
capacity of each parent to provide for the needs of the children
ability of the parents to communicate and cooperate efficiently

The judge gave weight to the expressed views of the children. The judge ordered that the boys live with their father and spend time with their mother.

Lautner & Lautner 2013 FCCA 46

by Don Tustin -

Collu & Rinaldo No 2 2010 FamCA 439

by Jo Tustin -

Micalef & Micalef 2014. FCCA 119

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