Two teenage boys expressing a view to live with their father in New York are to return to Sydney following a decision by the High Court in Bondelmonte & Bondelmonte (2016) FLC ¶93-698. The boys were aged almost 15 and almost 17 years at the time the orders were made by the Family Court of Australia which raises the question of how much weight should be given to the views of a child, especially given the maturity of the children in this instance, when determining a child’s best interests.
The parents separated in 2010 and orders were made in 2014 in relation to the children, which included the two boys and their younger sister. The orders provided for the parents to have equal shared parental responsibility for the children, that the children live with the parents as agreed by the parents or at the children’s own election, and that each parent could take the children out of Australia for a holiday provided notice was given. Following separation, the older boy lived with the father and was basically estranged from the mother, the younger boy lived with the father but spent time with the mother, and their sister lived with the mother.
In January 2016, the father took the boys on a two-week holiday in New York with the consent of the mother. Prior to the expected return of the boys, the father’s solicitor informed the mother that the father had decided to remain in the United States indefinitely and the boys had decided to stay with him. The mother filed an urgent application for orders in the Family Court of Australia that the boys be returned to Australia and, pending further order, that they live with her.
The trial judge found it was in the best interests of the boys for them to return to Australia pending a determination about whether they would continue to live in Australia or move to the United States. Provision was made for the children to live with friends’ families if the boys did not wish to live with the mother.
On appeal to the Full Court of the Family Court of Australia, the father submitted that the trial judge failed to give appropriate weight to the views expressed by the boys. A majority of the Full Court dismissed the father’s appeal. Ryan and Aldridge JJ reiterated the position in cases such as Maldera & Orbel (2014) FLC ¶93-602, that it is not the case that a judge is obliged to make orders consistent with a child’s stated views, rather that they are obliged to consider the weight to be given to stated views. Their Honour’s found that there were a number of factors which resulted in the trial judge reducing the weight he would have otherwise given to the boys views, including that the father’s desire to live in New York had influenced them. Le Poer Trench J, in dissent, held that the trial judge erred in failing to obtain from the children their views on the matter before holding that ordering their return was in their best interests.
The High Court unanimously held that the trial judge did not err in exercising his discretion to make the orders. Their Honours considered s 60CC(3)(a), which only requires that views of a child be considered, and rejected the father’s argument that the trial judge erred in discounting the boys views as he had formed an adverse view of the father’s actions. In relation to the provision that the boys could live with their friends’ families, their Honours considered s 64C and rejected the father’s argument that the trial judge erred in not ascertaining the boys views as to these alternative living arrangements.
Ultimately this case demonstrates that the wishes of a child is only one factor that is to be taken into account when determining the best interests of a child, even if the child is older and is able to strongly express their views.