Posts
Jeremy
D. Morley
The High Court of Australia has upheld a
trial court ruling that two teenage boys, now aged 17 and 15, who moved from
Sydney to New York with their father, should be returned to Australia, even
though they clearly wish to remain in New York. Bondelmonte v Bondelmonte, [2017] HCA 8.
The parents separated in 2010. The boys
then lived in Sydney with the father while their younger sister lived with the
mother. In 2014, parenting orders were made, which ordered equal shared
parental responsibility for the children and authorized either parent to take
the children on an overseas holiday subject to certain conditions being met.
In 2015, further orders were made requiring
the children to engage in a “Child Responsive Program” and the parents to be
interviewed by a family consultant.
In
January 2016, the two boys flew to New York with the father for a vacation.
After two weeks, the father informed the mother that he had decided to live
indefinitely in the United States and that the boys would remain with him.
The mother filed an application under Australia’s
Family Law Act 1975 to secure the boys' return. That statute requires the court
to have regard to "the best interests of the child as the paramount
consideration."
In determining what is in the child's best
interests, it provides that a primary consideration is "the benefit to the
child of having a meaningful relationship with both of the child's parents,"
while an "[a]dditional considerations" includes "any views
expressed by the child and any factors ... that the court thinks are relevant
to the weight it should give to the child's views."
The trial court ordered the return of the
boys to Australia, since the "best interests" of the children
involved consideration of the children's relationships with their parents and
each other, which were matters best dealt with in Australia via the mechanism
established by the 2015 orders. The
trial judge accepted evidence that the boys wished to remain living with the
father in New York, but considered the weight of those views to be
"weakened by the circumstances which have been contrived by the father."
He also ordered that, if the father did not return to Australia and the boys
did not wish to live with the mother, they could live either in supervised accommodation
or separately with the mothers of other children.
On appeal, the father asserted that the
trial court was required to look past the father's behavior in order to
determine the actual opinions of the older teenage boys and what was in their
best interests.
On appeal, the High Court rejected the
father's contention that the trial judge had erred in discounting the boys'
expressed preferences to remain in New York because he had formed an adverse
view of the father's actions. The Court held that the extent to which the boys'
views had been influenced by the father was relevant to the weight to be given
to those views.
The High Court also rejected the argument that
the trial judge was required to ascertain the boys' views as to the alternative
living arrangements. It held that the Family Law Act merely required that the
views which have been "expressed" by children should be considered,
but that ascertaining the boys' views was not statutorily mandated. Moreover,
since the statute permits parenting orders to be made in favor of a parent of a
child "or some other person," the orders for the alternative living
arrangements could be made in favor of the mothers of the boys' respective
friends.
Note: The author represents
the father in connection with matters in New York, where the father and the
boys reside. However, this summary is based solely on the language in the High
Court’s judgment.
