Parenting Orders – Does it matter what the children want?

In March of this year, the High Court of Australia was asked to consider an interesting and rather unusual case concerned with how a court considers the wishes of children when deciding parenting orders.

The Family Law Act 1975 (Cth) states that in making parenting orders the court must consider “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”.

However, the views of a child are just one of several factors that a court must take account of. The paramount consideration that a court must have in making parenting orders are the best interests of the child. Working out what that means varies from case to case.

The case Bondelmonte v Bondelmonte revolved around some very wealthy people and their 3 children – a daughter aged nearly 12 and 2 sons aged nearly 15 and nearly 17. The father had unilaterally moved to New York with the boys already living with him in keeping with existing parenting orders. The move overseas, however, was a breach of those orders. The boys were clear that they wanted to stay in the USA with their father. However, the mother wanted them to be returned to Australia (and so did their sister). The Family Court of Australia agreed with the mother and decided that the boys should return.

The father appealed and the case went to the High Court. He lost. In a unanimous decision, the High Court upheld the primary judge’s exercise of discretion in not placing as much weight on the boys’ views as the father had perhaps hoped for. Relevantly the court concluded that boys were subject to their father’s influence and so tempered the ‘weight’ given to their views. Despite the boys’ clear wishes they wanted to stay in the USA they were ordered to return to Australia so that a final decision could be taken here.

What we can glean from this case is that our courts are prepared to make tough decisions based upon the best interests of the children even where that decision is at odds with the views expressed by the children.

For more information on this topic please contact Margaret Miller, Partner and Family Lawyer. This article has been prepared by Bell Legal Group for general information purposes only. It is not legal advice and should not be relied upon as such.