The Children’s Wishes V The Children’s Best Interest – Recent High Court Decision

31/05/2017

The High Court in the recent case of Bondelmonte v Bondelmonte (decided in 2017) looked at the question as to the conflicting issues as to the child’s wishes and what is in the best interest of the child.

In this case there were 3 children of whom the two eldest boys were aged 17 and 15.

Orders had been made by agreement between the mother and father in 2014 which provided that the mother and father in the dispute that arose would have shared parental responsibility for the children.

The Family Court ordered (order 2) that “the children live with the husband and the wife as agreed between the parties or at the children’s own election”.

Even though the wording could have been clearer it was agreed between the mother and the father that the order (order 2) did not permit a child to decide independently of his or her parents whether or not the child would live in Australia or abroad.

The order in 2014 also provided that either parent could take the children out of Australia for the purpose of a holiday.

In this case the 2 boys aged 17 and 15 went to have a holiday with their father in New York.  Shortly thereafter the father decided that it would be in his financial interests to remain in the United States rather than return to Australia.  The father thereafter informed the mother’s Solicitor that the father had decided to live indefinitely in the United States and that the boys would remain with him.  At least one of the children did not want to live with the mother.

Proceedings were commenced by the mother for the return of the boys to Australia.

The children had expressed views that they wanted to stay with their father in New York.

The primary judge who initially decided the mother’s application for the return of the children ordered that the children be returned to Australia.  The father did not advise the Court that he would return to Australia if the Court ordered the children to return to Australia.  If he had advised the Court he would return to Australia, the Court would then have decided whether the children reside with the father in Australia.  Eventually the children were ordered to return to Australia to live with their mother or if the children did not wish to live with the mother they could live with certain known family friends.

The father appealed the decision primarily on the basis that the children’s views had not been properly considered and secondly the Family Court did not have power to make an order that the children live with family friends when those family friends had not made an Application.

The High Court considered the matters and dismissed the father’s appeal on the basis that the primary judge who heard the mother’s application that the children be returned to Australia had properly considered the matter.

The children’s wishes do not override the obligation of the Family Court or Federal Circuit Court to decide what is in the children’s best interests.

It is appropriate that where agreement is reached the orders are drafted in a manner which is easily understood.  It is important that when drafting orders that great care is taken as to the wording of those orders so that the orders are clear.  Ambiguous orders can sometimes lead to arguments as to the meaning of the orders, and can result in the orders being ineffective to a degree.  It is important for Watson & Watson experienced Family Lawyers to set out the orders in clear and unambiguous language.

Further it is important that when preparing a case that the appropriate evidence is ascertained and assembled and the case is prepared so that the Court is fully aware of the relevant circumstances so as to make a decision on the real facts.

It is important that the matters be properly considered. The experienced Family Lawyers at Watson & Watson will consider the factual matters and provide advice so that you can make an informed decision as to matters that concern you particularly in the most important aspects as to the parenting arrangements that are appropriate and ascertainable for your child/ren.  If you have any queries or concerns regarding parenting matters please do not hesitate to contact Richard Watson or his assistant Shereen Da Gloria to discuss your matter.

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