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The Child’s Views: Are They Conclusive Evidence of the Child’s Best Interests?

Divorce Settlement With Children

Child’s Best Interests: Are They Merely a Reflect of the Child’s Views?

The best interests of the chil are the paramount consideration when making parenting orders. These interests are analysed by reference to a number of considerations set out in the Family Law Act. The child’s views are among these considerations.

Conventional legal wisdom suggests that once a child reaches a certain age, say, 14, their views are conclusive evidence of their best interests. This proposition is not supported by legal principle. The child’s view may be decisive in certain circumstances. But this is not so much a matter of the child’s age. It has more to do with the degree of sophistication evident from the child’s view.

Older children generally have more sophisticated views than younger children. But this does not mean that older children always hold views that are sufficiency sophisticated so as to constitute conclusive evidence of the child’s best interest. This proposition is explored in the recent High Court decision in Bondelmonte and Bondelmonte & Anor [2017] HCA 8.

Child’s Best Interests: Are Parents Justified in Acquiescing to the Child’s Views?

Bondelmonte was an appeal by the father against orders that his two sons return to Australia. The father’s sons were 15 and 17 years of age, had been living with their father in New York and wanted to continue living there.
Parenting orders had been in place since 2014. The orders provided that the children live with the parents as either agreed by the parties or at the children’s election. Each party was entitled to take the children outside of Australia, provided that they gave notice to the other party.

Under the 2014 orders, the older boy lived with the father and, as a result, was estranged from the mother. The younger boy also lived with the father and spent limited time with his mother and sister.

In January of 2016, the father and his sons travelled to New York for a two-week holiday in compliance with the 2014 orders. Prior to the end of the two-week holiday period, the father’s solicitor contacted the mother, indicating that the father and the boys would remain in the US indefinitely. Consequently, the mother filed an urgent application in support orders that (1) the children be returned to Australia; and (2) they live with her.

The trial judge determined that it was in the best interests for the boys to be returned to Australia. It was also ordered that the children would live with family friends, if they did not wish to live with their mother.

Child’s Best Interests: High Court’s Approach to Weighing the Children’s Views

The father’s appeal was predicated on two submissions. First, the children’s views should have been decisive. Had the trial judge given “proper, genuine and realistic consideration” to the children’s views, he would have made orders accordingly. Second, with respect to the children living with family friends, the father submitted that parenting orders should not be made in favour of strangers to the proceedings.

Regarding the first submission, the Full Court held that the children’s views are not decisive. They may be decisive in some cases, but the relevant section of the Act does not require the court to take that approach. Further, the 2014 orders contained a mechanism for resolving disputes between the parties which required the boys return to Australia. The trial judge acknowledged the boys’ desire to remain in New York. But in examining their views, it was determined that they had failed to address significant issues related to their best interests. These issues included the fact that they would be separated from their mother and sister. The trial judge held that a family consultant could best address the issues in question, and the High Court agreed. And this in turn required the boys’ return to Australia. Accordingly, the father’s submission was rejected.

As for the second submission, the High Court determined that the family friends in question were not, as the father put it, strangers to the court. The court had undertakings from the relevant parties that they would offer “nurturing and care” and to “implement arrangements for monitoring homework and transport to and from school” as well as sleeping arrangements. Hence, the father’s second submission was also rejected and his appeal dismissed.

Child’s Best Interests: High Court’s Approach to Weighing the Children’s Views

Bondelmonte shows that when it comes determining the weight attached to a child’s views, age ain’t nothing but a number. One of the High Court’s critical findings was that the boys had failed to consider how their desire to remain in New York might affect their relationship with their mother and sister. And given that the family consultant was in a better position give evidence regarding this issues, it seems appropriate that the children should return to Australia. So, when it comes to arguments to the effect that the children’s views should carry substantial weight, it is important to bear in mind that the views in question are of appropriate breadth and depth. This is especially so if a family consultant is likely to intervene.

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