Article

In relation to Parenting matters, the child’s best interests is the Court’s paramount consideration.

Clients will often ask us, “Do my children have to visit the other parent if they don’t want to?” and, “At what age can my children decide where they want to live and what time they spend with the other parent?” The short answer is, there is no specific age. The Family Law Act 1975 (“the Act”) does not prescribe an age whereby the Court must follow the views of the child. While the general consensus amongst Family Lawyers is that as the children grow older, and generally by the age of around 14 or 15 years, the Court will start to give more weight to their views, it is important to remember that every child is different. The circumstances of each parenting matter must be assessed on a case-by-case basis.

While the Court must take into account and give genuine consideration to a child’s views, it is not the determining factor, and the Court is not bound by them.

In determining the child’s best interests, the primary considerations that the Court must take into account in accordance with section 60CC of the Act are:

• a) The benefit to the child of having a meaningful relationship with both parents; and
• b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (The Court is to give greater weight to the consideration in subparagraph b).

Additional considerations that the Court must take into account include, but are not limited to:

• c) 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.
•  d) The nature of the relationship of the child with each of the child's parents and other persons (including any grandparent or other relative of the child).
•  e) The extent to which each of the child's parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child.

The above is not an exhaustive list and the Court has discretion as to what importance to give to each consideration. Parents have an obligation to encourage and facilitate the child having a meaningful relationship with both parents. Children are highly impressionable and therefore, their views and wishes about their living arrangements may not necessarily be accurate nor in their best interests.

In the recent case of Bondelomonte and Bondelmonte & Anor [2017] HCA 8, the High Court of Australia considered the issue of the children’s views in a parenting matter.

In that case, the father appealed against Orders made that the children, (two boys aged almost 15 years and almost 17 years), return to Australia from New York despite the children’s views to the contrary.

The parents separated in 2010 and Orders were made in 2014 in relation to the children, which included the two boys and their younger sister. The Orders provided for the parents to have equal shared parental responsibility for the children, that the children live with the parents as agreed by the parents or at the children’s own election, and that each parent could take the children out of Australia for a holiday provided notice was given.

Following separation, the older boy lived with the father and was basically estranged from the mother, the younger boy lived with the father but spent time with the mother, and their sister lived with the mother.

In January 2016, the father took the boys on a two-week holiday in New York with the consent of the mother. Prior to the expected return of the boys, the father’s solicitor informed the mother that the father had decided to remain in the United States indefinitely and the boys had decided to stay with him. The mother filed an urgent application for orders in the Family Court of Australia that the boys be returned to Australia and, pending further order, that they live with her.

The trial judge found it was in the best interests of the boys for them to return to Australia pending a determination about whether they would continue to live in Australia or move to the United States. Provision was made for the children to live with friends’ families if the boys did not wish to live with the mother.

The father appealed contending that the trial judge was required to give “proper, genuine and realistic consideration” to the views of the boys in relation to the interim parenting Orders. The father further contended that the trial judge was wrong to discount the boys’ views about remaining in New York because the trial judge formed an adverse view of the father’s actions.

The High Court dismissed the Father’s appeal and held:

• “The focus placed by the father upon the prescribed consideration stated in section 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”.

In summary, it was held by the High Court that:

• The Court is not, of itself, required to ascertain the views of the children.
• An Independent Children’s Lawyer must ensure that any views which are expressed by the children are put before the Court.
• Any views of the children put before the Court must be given genuine and realistic consideration of those views.

The Court is loathe to include children in parenting disputes. The ways in which the child’s views are ascertained is through child focused and legitimate avenues such as a Family Report and/or by way of interviews with the Independent Children’s Lawyer. Parents and family members are not to question children about where they want to live and with whom they want to spend time with.

If you need further advice, please do not hesitate to contact Tonkin Legal Group on (03) 9435 9044 to make an appointment with one of our experienced Family Lawyers.