In the decision of Bondelmonte v Bondelmonte, the High Court ordered the return of two boys aged 17 and 15 who were residing in the US with their father, despite the boys’ express unwillingness to do so. In their decision, the High Court affirmed that ultimately the wishes of anyone under the age of 18 are only one factor for the Judge to take into account when deciding what is in a child’s best interests. They have to look at all the factors set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”) – not just the child’s wishes.
The father and mother, in that case, had two boys and a girl and both had equal shared parental responsibility for the children. As a consequence, decisions about major long-term issues relating to the children must be made jointly.
The parties and the children lived in Australia until January 2016. On 14 January 2016 the father, with the consent of the mother, took the boys on what was supposed to be a two-week holiday to New York. A few days before the boys were to return from their holiday to Australia, the father’s solicitor notified the mother that the father had decided to remain in the US indefinitely and the boys had elected to remain with him, and would not be returned. This was in breach of the parenting orders the mother and father had entered into in 2014.
The mother then filed an application under the Act seeking orders to have the two boys returned to the Australia to reside with the mother. The decision to make parenting orders under the Act requires that the Court have regards to the best interest of the children as the paramount consideration. To determine what those best interests for the children were, the Act also requires consideration of the benefit of the children having a meaningful relationship with both children’s parents. However, an additional consideration includes any views expressed by the children and any factors that the Court thinks are relevant to the weight it should give to the children’s views.
In the initial hearing, His Honour Justice Watts ordered the return of the boys to Australia. His Honour accepted the views of the boys and their desire to reside with their father, however, formed the opinion that those views were weakened by the circumstances which have been contrived by the father. The father then appealed to the Full Court, where the appeal was dismissed.
After being granted special leave the father appealed to the High Court. The High Court rejected the father’s argument that Justice Watts erred in discounting the boys’ expressed preferences to remain in New York because His Honour formed an adverse view of the father’s actions. The High Court also affirmed that nothing in section 60CC(3)(a) of the Act requires a Court to seek the views of a child, and while the Act provides a mechanism for doing so, it does not oblige the Court to do so in every case.
The Court also noted that the father’s flagrant disregard of the parenting orders was a matter relevant to the children’s best interests under the Act.
Despite the children explicitly stating that they wanted to stay with the father in New York, the Court looked at what was in their best interests overall, including the disruption of their relationship with the mother and their sister, which was something that the boys had not considered when expressing their views.
This case has shed some light on the misconception that teenagers over a certain age can elect to reside with whichever parent they wish. Ultimately, the Court’s paramount consideration is to make decisions in the best interest of the child, and in doing so must primarily consider the benefit of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm.