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By Simon Creek, Esq. and Carol Teo, Esq.
HHG Legal Group
West Perth, Australia

The High Court of Australia has affirmed the Family Court’s wide discretion in the recent decision of Bondelmonte & Bondelmonte & Anor [2017] HCA.  The High Court held that although a Court must give proper, genuine and realistic consideration to the views of teenage children regarding parenting arrangements, their views are not solely determinative.

In Bondelmonte the parties had three children, two boys and one young girl.  The post-separation parenting arrangements for the children could generally be summarised as:

  1. the boys primarily living with the father and having little or no contact with their mother; and

  1. the daughter primarily living with the mother and having minimal contact with the father.

The arrangement appeared to work well until father decided to take an overseas holiday with the boys to New York.  Despite her reservations, the mother had reluctantly consented to the father travelling with the boys.  Approximately two weeks into the holiday the father advised the mother that he and the boys would remain in the US indefinitely.

Predictably, the mother commenced urgent court proceedings for the children to be returned to Australia.  Distilled to its bare essentials, the father’s position was the boys had expressed a strong desire to remain with him in New York and that this should be taken into account by the Court.  The Court accepted that the boys wanted to remain in New York.  However, the Court determined that it was in the best interests of the boys that they return to Australia, at least temporarily.

What was the Court’s reasoning?  Simply, the views of the boys had to be considered and balanced against other factors such as the potential damage to the mother/son relationship, the father/daughter relationship and the daughter’s relationship with her brothers if the boys were to remain in the US.  These issues could only best be addressed in Australia where the entire family could be assessed.

The father subsequently appealed the lower court’s decision to the Full Court of the Family Court.  He did not succeed and decided to take his chances with an appeal to the High Court of Australia.  He did not succeed in the High Court of Australia either.  The High Court essentially reaffirmed the long-standing jurisprudence in this area.  Specifically, that:

  1. The making of a parenting order involves the exercise of judicial discretion, which requires the Court to take into account a number of considerations (for example, the degree to which the views of the children may have been influenced by the father) and not solely the views of the children.

  1. While the legislation provides that a child’s views should be given proper consideration, their importance in a given case may depend upon factors such as the child’s age, maturity and understanding of what is involved in the choice they have expressed.

On a practical level the case is important because Family Law practitioners often encounter clients who assume that the views of the children are solely determinative as to the parenting arrangements to be agreed.  Bondalmente reaffirms earlier jurisprudence on this issue that the children’s views are only one of several factors for the Court to consider and it depends on the children’s age, maturity and understanding of the consequences of their expressed views.

Co-authored Simon Creek, Managing Director and Caroline Teo Senior Lawyer HHG Legal Group