When the Court makes parenting orders the paramount consideration in determining the children’s living arrangements is “what is the children’s best interests”. Section s60CC of the Family Law Act 1975 (Cth) sets out a list of the considerations which the Court takes into account in determining what is in the children’s best interests. One of the considerations is the child’s views including the child’s level of maturity and the weight that should be given to such views.
Up until recently, it has been thought that children particularly those of mature years were able to decide for themselves which parent they wished to live with once their parents separated.
The issue of the children’s views and the weight that the Court places upon such views was tested in the recent High Court case of Bondelmonte v Bondelmonte  HCA 8 (1 March 2017) which involved the return of 2 teenage boys, aged almost 17 and 15 at the time of the trial, to Australia despite their strong wishes to live with their Father in New York.
The facts in Bondelmonte v Bondelmonte
The 2 older boys aged 15 and 13 were living with the Father and the daughter who was 10 years old was living with her Mother after separation.
When the boys were 16 and 14 years old the Father took them for a holiday to New York with the Mother’s consent. Whilst in New York, the Father decided to live there permanently. The 2 boys made it clear that they wanted to live with their Father in New York. The parenting orders which were in place at the time did not permit the Father to change the boys’ residence to the US. The Father never bought an application to relocate with the boys to New York but instead heavily relied on the fact that the boys had expressed a strong wish to remain living with him there. The Mother sought that the boys be returned to Australia. Her application was successful. The Father appealed the decision to the Full Court of the Family Court of Australia and subsequently to the High Court of Australia. Both appeals were dismissed.
Whilst the Court accepted the boys’ desire to live with their Father in New York, the Court was concerned that the boys did not appear to have given any thought to the effect of their separation from their Mother and their sister and how those relationships could be maintained. Another relevant consideration was the Father’s “flagrant disregard” of Court Orders. The Court was concerned that the Father’s attitude towards the responsibilities of parenthood would send a poor message to the boys, whose views, on the evidence, had been influenced by the Father’s actions.
What does this mean?
The above case clearly demonstrates that, despite popular belief to the contrary, the children’s views is merely one of the considerations the Court takes into account in determining what care arrangements are in the children’s best interests. Whilst the legislation sets out a comprehensive list of considerations in determining what is in the children’s best interests and one of them does give the children a voice in the above process, the children’s views are not always binding nor decisive when the Court makes parenting orders. Another thing to bear in mind is that the Court does not adopt a one size fits all approach in determining the children’s living arrangements after separation. Every child and its relationships with his or her parents as well as his or her siblings or other significant persons in his or her life are different. Therefore what may be regarded as being a good care arrangement for one child it does not necessarily mean that it may work for another family.
If you need advice on parenting matters and particularly what weight may be placed on any views that your child may have expressed in terms of his or her living arrangements, please contact our experienced family law solicitor Anthi Balafas of Rockliffs Lawyers at (02) 9299 4912.
Author: Anthi Balafas
Disclaimer: this information is not intended to constitute legal advice. it is general information only and should not be relied upon in specialist family law advice.