The wishes of the child – not what they used to be?

It is commonly believed that once a child turns 12 or 13, the views expressed by the child will be determinative of the outcome of proceedings as to that child’s living arrangements.

A recent High Court decision in the matter of Bondelmonte & Bondelmonte & Anor [2017] HCA 8, reinforces that such a belief is unwisely held.

The Bondelmonte family comprised the mother, father, boys who were aged 14 and 16 in 2016, and a 12 year old daughter.   The parties separated in 2010 and Orders were made in 2014. Those Orders provided for the children to live in the shared care of the parties, “as agreed between the parties or at the children’s own election”.

The Orders further provided that the parties could take the children overseas for holidays, subject to the normal notice provisions, and to contact continuing.

The Orders did not provide for the children to determine if they lived in Australia or overseas.

During 2015 the parties were engaged in ongoing proceedings relating to the care of the children.   By the end of 2015 the parties were awaiting an assessment. Meetings were booked with the Family Consultant on 13 January 2016.

The father took the boys to New York for a holiday in early 2016.   Upon arrival he advised the mother that the boys had decided they wished to remain living with him in New York and, as a result, he did not intend to return them to Australia.

The wife sought an Order that the children be returned to Australia.

In the first instance, the Father relied upon the wishes expressed by the boys.   He sought that the Court obtain a wishes report from a suitably qualified expert in New York as to the wishes of the boys.

Justice Watts declined to do so, not only because of his view that the wishes of the children were well known, but also because of the delay that was likely to be caused by such a step.

Justice Watts held that the boys’ wishes should be afforded little weight as:

• He considered there had been extensive conversations between the father and the younger of the two boys about the father’s desire to relocate to the US;
• Any report as to the wishes of the children was unlikely to have any utility as the boys were in the care of their father in the US;
• The father had involved the boys in this breach of the Orders relating to their care, and the “actions of the father have significantly prejudiced and almost certainly coloured any statements the boys may make whilst they are in New York”;
• HIs Honour was satisfied that the boys did wish to remain in the care of the father, but “the weight which might otherwise be attached to the views of the children then aged 16 and 14 was…weakened by the circumstances which have been contrived by the father”

The primary Judge was also concerned about the manner in which the father had retained the boys and his involvement of them in the breach of the Orders. He noted that in doing so, the father had demonstrated poor judgment as a parent and “as a role model for the boys”. For the Court to sanction the father’s behaviour would send a poor message… about what might be considered to be appropriate parental behaviour.

The Judge made an Order for the return of the boys to Australia. He made an Order that the boys live either with the mother or, if the boys choose in either of two alternative options proposed by the mother.

The Judge did not seek to ascertain the views of the boys about the alternative living arrangements to be put in place upon their return to Australia.

The father appealed this decision.

The majority of the Full Court of the Family Court of Australia dismissed the Appeal. On the issue of the Judge’s treatment of the views expressed by the boys, the Full Court said the Judge was not in error and that it was open to him to make an Order for the immediate return of the boys to Australia to enable the Court to then determine their best interests.

The minority in the Full Court said that the Judge was required to look past the conduct of the father in order to determine the best interests of the boys.

The father appealed this decision to the High Court.

On 1 March 2017 the High Court dismissed the father’s appeal.

In dismissing the Appeal, the High Court noted:

The extent to which the father had influenced the views of the children was relevant to the weight to be attached to those views.

The High Court further noted that Section 60CC (3)(a) does not require the Court to seek the views of the children, but to take into account any views that are expressed.   The Judge at first instance did not fall into error when he failed to ascertain the boys’ wishes about the alternative arrangements to be put in place upon their return to Australia.

At paragraph 39 the High Court addressed the issue of the father’s conduct and the impact that had had on the primary Judge’s decision.

The High Court said:

39. 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.
40. It is correct to say that the primary judge gave less weight to the preferences the boys had expressed to remain in New York, but his Honour cannot be said to have been motivated to do so by reason of the father’s actions. Had that been the case, his Honour would have been taking into account an irrelevant consideration, but that was not his approach. The primary judge’s approach provides no basis for a conclusion that he failed to take into account the boys’ wishes, a consideration made relevant and therefore necessary by s 60CC(3)(a).
41. Section 60CC(3)(a) requires that the court take into account not only the views expressed by the child, but also “any factors … that the court thinks are relevant to the weight it should give to the child’s views“. The factors that the provision gives as relevant are the child’s maturity or level of understanding, but plainly the court may consider other matters to be relevant. The factor that the primary judge identified as relevant was the extent to which the boys’ views had been influenced by the father, clearly a matter going to the weight to be given to their stated preferences.

Jane Johnson

Senior Associate Kim Wilson & Co

E: jane.johnson@kimwilson.com.au

T: (08) 6380 3900