When do children have a choice in family law matters?

Malcolm Gittoes-Caesar

Assisted by Carli Heald

The High Court recently handed down a decision in a controversial case, Bondelmonte v Bondelmonte, which has significant implications for the views of the child in family law proceedings.

In this case, the High Court held that two boys aged 15 and 17 years of age, weren’t able to live with their father overseas, in spite of the fact that it was in accordance with the boys’ wishes. The boys had lived with their father since 2010 while their 12-year old sister had been living with their mother.

In January 2016, the father took the boys to New York for a holiday, which the 2014 orders allowed. However, after spending two weeks in New York, the father informed the mother he intended to live in the United States indefinitely and that the boys had indicated a preference to remain there with him.

The mother subsequently filed an application in the Family Court of Australia seeking the boys’ return to Australia. Family Court Justice Watts made an order at first instance that the children be returned to the mother, deeming it in the best interests of their relationship with their mother and sister for them to be in Australia.  

Justice Watts also made orders that should the father not return to Australia, alternate living arrangements could be made for the boys to live in either supervised accommodation paid for by their father or with parents of their friends in Australia.

An application was made to the full Court of the Family Court by the father, appealing Justice Watts’ decision. The appeal was dismissed, though the father was granted special leave to appeal to the High Court. The mother didn’t partake in the High Court appeal, and the independent children’s lawyer intervened and opposed the father’s appeal.  

The High Court rejected the father’s argument that Justice Watts had erred in attributing less weight to the boys’ wishes that they remain in New York. The High Court accepted that the boys genuinely desired to remain living with their father however, this was somewhat less significant in circumstances where the father had orchestrated the holiday and where the circumstances in which the children decided to remain in America with him were somewhat artificial. 

The Family Law Act provides that the Court may have regard to any views expressed by children in family law matters, as to their living arrangements. Under these provisions, lawyers generally view it as a requirement that the Court must give consideration to children’s views - particularly where children are older (approaching 18 years of age). In these circumstances, it’s common for lawyers to make the submission that, as the child is almost 18 years old, their views should be treated with significant weight and that the child’s views be influential to a Judge’s decision in determining parenting arrangements.  

However, the Act is limited to the Judge turning his mind to these views – not relying upon them in their Judgement. Justice Watts was not required as a matter of law to make orders reflecting those views.

The intervention by the independent children’s lawyer in this case also highlights the significance of the role an independent children’s lawyer can have, and is somewhat indicative of a renewed purpose for the role in family law matters. The role of the independent lawyer in a family law matter is generally to advocate for the best interest of the child or children, which doesn’t necessarily mean that they will advocate consistently with the children’s views. By opposing the father’s application in the mother’s absence, the independent children’s lawyers assumed a more active and meaningful role in the matter while maintaining a child-focused approach.  

Although the children in this case were mature enough to form their own views as to which parent they live with, The High Court was of the view that remaining in New York would interfere with, and hinder, the children’s relationship with their mother and sister, and that this was something the boys hadn’t readily considered when expressing their preference to live with their father in New York.  As such, it was determined that remaining in New York wasn’t in their overall best interest.

What is the impact for other family law matters?

The effect of Bondelmonte is that the unwritten rule that children close to the age of 18 will not be bound by the Court to live or spend time with a parent and against their wishes, has been (unofficially) overruled.   

Evidently, children do have a voice but not necessarily a choice in family law matters. 

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