Stephen Potts
7 April 2017
The High Court of Australia has recently published its reasons for upholding the interim decision of a Family Court Judge to order the return of 2 boys aged nearly 15 and nearly 17 to Australia from New York. [1] The children travelled with their Father under the guise of a holiday. Approximately a fortnight later the Father informed the Mother he intended to remain indefinitely in the United States with the boys. The Mother and the parties’ 12 year old daughter remained living in Australia.
The Father initially appealed to the Full Court of the Family Court. He was unsuccessful and appealed to the High Court. The central issue on appeal was whether the Trial Judge had given proper consideration to the views of the boys and their alleged reluctance to return to Australia.
When making a Parenting Order the Court must regard the best interests of a child as the paramount consideration. To determine the children’s best interests the Court must consider a number of primary and additional considerations.[2] In particular, the Court considers: ‘any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views’.[3]
A child’s views can be obtained through a report by a social worker or family consultant, through the involvement of an Independent Children’s Lawyer, or by such other means as the Court thinks appropriate.[4] However, a child cannot be required to express a view.[5]
The Father argued the children’s wishes could be obtained by an expert in the United States and provided to the Court. The Trial Judge doubted the utility of any report about the boys’ views while they remained under the influence of the Father in New York. He found any views they expressed would have been contrived by the Father. Instead, he considered a Family Report should be prepared in Australia. That Report could look at the boys’ views and the dynamics of their relationships with their mother, their younger sister who remained in Australia, and the Father’s relationship with their sister.
The High Court upheld the Trial Judge’s decision and stated that in some cases it might be appropriate, in the exercise of a Judge’s discretion, to give significant weight to the views expressed by children but the legislation does not require that course to be taken. The children’s views are only one of a number of considerations taken into account in the overall assessment of a child’s best interests. The weight to be given to a child’ views will depend on factors such as the child’s age or maturity and level of understanding of what’s involved in the views they have expressed.
The Trial Judge accepted the boys had expressed a desire to remain in New York but considered there were other matters about which the boys did not appear to have given any thought, such as the effect of their separation from their mother and sister. The Court was also required to consider the maintenance of the relationship between the Father and the daughter.
The High Court agreed with the Trial Judge that the appropriate course of action was for a Family Report to be undertaken by a Family Consultant in Australia and that for the purpose of that Report, the boys should return to live in Australia.
The Trial Judge was critical of the Father’s actions and the Father, in the course of his Appeal, argued this was an irrelevant consideration. The High Court disagreed saying:
It would have been remarkable if the primary judge had not commented upon the father’s conduct. It involved a breach of the 2014 parenting orders and it had the potential to undermine the possible relationships that family members might have in the future, a matter to which the processes put in place by the 2015 orders had been directed. Furthermore, the father’s flagrant disregard of the parenting orders was a matter relevant to the child’s best interests under s 60CC(3)(i). It evinced an attitude towards the responsibilities of parenthood that, if left unchecked, would likely send a poor message to boys who, on the evidence, were highly impressionable.[6]
The Father’s Appeal was dismissed and he was ordered to return the boys to Australia.
Application
One of the notable features of this case, in all proceedings before the Family Court, the Full Court of the Family Court and the High Court, was the decision to compel the return of children who were of an age where their views might be thought to be determinative of where they live. Many separating parents ask, “How old does a child need to be to decide where they live?” The Family Law Act does not say there is an age at which a child’s views become determinative. Notwithstanding this, it is often the case that as children enter their teenage years the Court places significant weight on their views as the children gain a better understanding of what it may be like to live in separate households.
The High Court’s decision reinforces the Court’s view that it will give limited weight to, or even ignore, the views of children where those views may have been influenced by the parent with whom they are living.
The decision appealed by the Father was an Interim Order made by a Judge on a temporary basis so that further evidence could be gathered. The Father’s unilateral action to retain the children in America had the effect of preventing the Family Court from following the comprehensive process it had put in place to determine the children’s best interests. Of course, it may be that once the children return to Australia, and a full investigation occurs, the Court determines it is appropriate for the children to return to New York with the Father.
The High Court’s decision serves as a reminder of the complexity of issues to be balanced when making a decision about the best interests of children, and in particular the weight that should be attached to views they express about their living arrangements.
For more information regarding parenting issues, views expressed by children and how the Family Court determines what Orders are in the best interests of a child, we invite you to contact our office.
[1] Bondelmonte v Bondelmonte [2017] HCA 8
[2] s.60CC(2),(3) Family Law Act 1975 (Cth)
[3] s.60CC(3)(a) Family Law Act 1975 (Cth)
[4] s.60CD Family Law Act 1975 (Cth)
[5] s.60CE Family Law Act 1975 (Cth)
[6] Bondelmonte v Bondelmonte [2017] HCA 8 at [39]