Children’s wishes in Family Court – High Court says wishes of child not only factor to consider despite their age

When making decisions about where children should live (‘custody’) the Court needs to consider a number of factors in determining what is in the child’s best interest – not necessarily what is best for the parent/s or even what the child themselves wants to do.

The Family Law Act 1975 (‘the Act’) sets out both primary and additional considerations when determining what is in the child’s best interest. The ‘primary considerations’ are the benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. There are then a list of what are called ‘additional considerations’ which include determining the “wishes” of the child.

A judge is by no means bound by even a strongly voiced view of a child, despite their age, as to who they want to live with or how often they want to see the other parent or any other issue. The Act requires the Judge to merely consider any view expressed by the child (if any – it is not mandatory) and weigh it against other factors such as the child’s maturity or level of understanding. It is but one of a range of considerations for the Court in making a parenting order, not the overriding one.

The High Court recently considered the issue in the case of Bondelmonte & Bondelmonte [2017] HCA 8 the basic facts of that case were that the parents had separated and parenting orders were made in 2004 when the children were 11, 9 and 5. Consent orders were made in 2014 providing for the children to live with either parent as agreed between the parents and the children and a later order allowing the parents to take the children out of Australia for the purpose of holidaying. At that time the eldest two children, both boys, then aged 16 and 14 years of age were living with the father and the daughter aged 11 lived with the mother. The eldest boy was estranged from the mother but the middle son was spending irregular time with the mother.

In 2016 the father notified the mother he was going to take the sons (not the daughter) to the USA for a holiday and the mother consented. While on the holiday the father decided that he would live in the USA permanently and not return the sons to Australia. As the oldest son was over the age where the Hague Convention would assist to return him home, the mother also filed an Application in the Family Court of Australia for the return of both boys. The father’s case was that each of the boys expressed strong wishes to remain with him in the USA and not return to Australia. The trial judge ordered the return of the boys to Australia, with or without the father.

The father appealed to the Full Court and then to the High Court where the appeal was dismissed.

Regarding the importance of a child’s views the High Court said:

“The focus placed by the father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status. In some cases, it may be right, in the exercise of a primary judge’s discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken. They are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests”.

Accredited Specialist in Family Law, Simone Green says that children’s ‘custody’ matters can be complex. It is important to get the right advice early and focus on what is best for the children outside of the competing arguments of the parents. Anyone considering filing an Application in the Family Courts should seek specialist legal advice before doing so.