High Court Confirms Children’s Wishes Not Sole Determinant in Parenting Proceedings

In the recent case of Bondelmonte v Bondelmonte & Anor [2017] HCA 8 (13 December 2016), the High Court of Australia held that both children aged 15 and 17 were not allowed to live with father as they wished.

In 2010, when the parents separated, the Family Court ordered to give equal parenting responsibility to both parents, with living arrangements to be decided by the parties and the children. The boys lived with their father, and their sister (12) lived with their mother.

The conflict arose when the father decided to take the boys to New York for vacation during January 2016. The parenting order permitted the parents to take the boys overseas on holidays, subject to certain conditions being met. Two weeks thereafter, however, the father told the mother that the boys will be permanently living in the US with him.

The mother filed an application pursuant to Family Law Act 1975 (the Act”) for the boys to be returned to Australia. Justice Watts ordered the return of the boys to Australia. His Honour considered that determining the “best interests” of the child involved consideration of the children’s relationships with their parents and each other. Justice Watts accepted the evidence that the boys wished to remain living with their father in New York. His Honour held, however,  that the weight of the evidence was weakened by the circumstances contrived by the father.

Additionally, Justice Watts ordered an alternative living arrangements for the boys if the boys did not wish to live with their mother. These arrangements would see the boys live either in accommodation in supervision paid for by the father or with the parents of their friends.

 

On Appeal

The father appealed to the Full Court of the Family Court of Australia, where the appeal was dismissed. He was granted special leave to appeal to the High Court. The mother did not take part in the High Court process, so an independent children’s lawyer opposed the father’s appeal.

The High Court rejected the argument of the father that Justice Watts erred in ascertaining the boys’ preference to live in New York with their father. The High Court also rejected the argument that Justice Watts was required to ascertain the boys’ views and act on them, as to the alternative living arrangement. Pursuant to  60CC(3)(a) of the Act, the court is required to consider the views expressed by the child. It is not necessary, however, to act on these views. Justice Watts considered the extent to which the boys’ views had been influenced by the father and gave relevant weight to their views.

Further, pursuant to s 64C of the Act, parenting orders to be made in favour of a parent of a child or “some other person”, the orders for the alternative living arrangements could be made in favour of the mother’s respective friends. The Court held that the mother’s respective friends were known to the Family Court, and had made an undertaking to the Court as to the boy’s care and accommodation, which was sufficient, particularly because these were interim orders made in circumstances of urgency.

The High Court unanimously dismissed the appeal.

 

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