One of the paramount considerations in family law matters when dealing with children is a phrase repeated by lawyers and courts across the country, “what is in the best interests of the children?”. This consideration is also stated in section 60CA of the Family Law Act 1975 (Cth) (“the Act”).
It’s natural to think that this would be easy to determine, especially considering that the Act provides a comprehensive outline of the considerations to be taken into account. But in reality, there are a lot of factors that should be considered which may not fit into that list. Further complicating this issue is the fact that every child is different, every relationship is different and what works for one child, might not work for another.
With so much to consider, where do the children’s wishes come into it and how much weight are they actually given by the courts?
This particular issue was recently tested in a High Court of Australia case, Bondelmonte v Bondelmonte & Anor  HCA 8.
Mr and Mrs Bondelmonte (‘the parties’) first separated in 2010, however interim parenting orders were not made until 2014, when they applied for equal shared parenting orders and for living arrangements as decided by the parties and the children.
The two older boys, aged 15 and 13, lived with the father and the daughter, who was 10, lived with the mother.
Further orders were made in 2015 for both the parties and the children to meet with a Family Consultant in January 2016 so the consultant could prepare a report for the court, to assist the judge in determining what was in the best interests of the children.
Prior to this appointment the father, with the consent of the mother, traveled with the two boys to New York for a holiday. The boys were then aged 16 and 14.
Two weeks into the trip, the father told the mother that he intended to remain living in the United States and that the two boys wanted to reside with him there.
In response, the mother filed an urgent application for the two boys to be returned to Australia. She also asked for the court to determine what was in the best interests of the children, taking into account appropriate living arrangements and the relationship both children had with each other, their parents, and their sister.
The mother was successful in her application and the children were returned to Australia, with orders being made for the parties and the children to undergo the assessment previously ordered with the Family Consultant.
Somewhat unsurprisingly, the subsequent report indicated that the two boys wanted to remain living with their father in New York.
At trial Justice Watts accepted the evidence that the boys expressly and definitively wished to remain living with their father in New York, however Justice Watts also found those wishes to be “weakened” and influenced by the father’s action of taking them to New York.
The outcome of the trial was that orders were made for the two sons to remain in Australia and if they did not wish to live with their mother, for “alternate living arrangements” to be made, such as residing with friends of their mother.
The father appealed to the Full Court of the Family Court. This appeal was dismissed, however he was granted special leave to appeal to the High Court.
The High Court rejected the father’s argument which was that the Trial Judge erred in discounting the boys’ expressed preference to remain living in New York because the Trial Judge formed an adverse view of the father’s actions. Importantly, the High Court went on to say that whilst Section 60CC(3)(a) outlines the children’s expressed wishes to a be a consideration in determining what is in their best wishes, it is not a binding or mandatory consideration on the Court.
Bondelmonte v Bondelmonte is an important case in family law matters dealing with children, particularly those of a mature age, as it highlights that whilst the children’s wishes can be taken into account, they are not ultimately the deciding factor for the courts.
In this particular case, the children were 17 and 15 years of age by the time the trial occurred. Previously, it has been difficult for a court to disregard the expressed wishes of older teenagers as many ignore any orders made by the court – much to the frustration of their parents! From a practical perspective, this may still be a problem that Mr and Mrs Bondelmonte will have to deal with.
What is important is that this case now provides parents with some guidance from the courts in terms of dealing with the expressed wishes of children in family law matters.
Whilst the children’s expressed wishes are still a relevant and important consideration which need to be taken into account, the High Court has now determined that the court needs to look at the ‘big picture’ in terms of how the expressed wishes of the child may impact on other considerations, such as the relationship with their other parent and any siblings, something which many teenagers may not have considered when deciding what they think is best for themselves.
Practice Area: Family Law