By Carolyn Cheng, Special Counsel

Homeward Bound: Court orders children to return to Australia from New York; children’s views were only one factor to be considered

The father overheld the parties two sons, aged nearly 15 and nearly 17, in New York in breach of court orders. The parties’ daughter, aged 12, remained in Australia with the mother.

The primary judge accepted the father’s evidence that the boys had a strong wish to remain in New York. His Honour found, however, that the father had prejudiced and coloured the boys’ views by discussing his desire to remain in New York with them. The primary judge rejected the father’s proposal that a report be prepared as to the boy’s wishes, and instead ordered a Family Report that would consider their wishes as well as other matters including separation from their sister and the dynamics of relationships within the family. An interim order was made for the return of the boys to Australia. The father appealed.

The High Court of Australia held:

  1. when determining what is in a child’s best interests, the court must consider the factors set out in section 60CC of the Family Law Act 1975 (“Act”). This includes, under section 60CC(3)(a), the views of the child and “any factors… that the court thinks are relevant to the weight it should give to the child’s views”;
  2. the father’s appeal sought to elevate views expressed by a child to something approaching a decisive status. Whilst it might be correct for a primary judge in some cases to give a child’s views such weight, the Act does not require that to occur. The views of a child are one of a number of considerations to be taken into account;
  3. section 60CC(3)(a) refers to a child’s maturity and level of understanding as factors that may be relevant, but the court plainly may consider other matters to be relevant. The primary judge was entitled to identify as relevant the extent to which the father had influenced the boys’ views and this went to the weight given to the views.

The father’s appeal was dismissed.

Bondelmonte v Bondelmonte [2017] HCA 8