FLAST CASE SUMMARY: Bondlemonte 2017: Weight Given to Children’s Expressed Views
Bondelmonte v Bondelmonte [2017] HCA 8 (1 March 2017)
This case sparked national interest in 2017, with two brothers aged 15 and 17, who expressed strong views to reside with the Father who had existing equal shared parenting orders with the mother.
This case tested the expressed views of children (in this case teenage children) and their wishes for which parent to reside with.
FACTS:
- The Mother and Father separated in 2010 and had equal shared parenting orders, they have a daughter aged nearly 12 and 2 sons aged nearly 15 and nearly 17.
- It was decided between the family the two sons live with the Father and the daughter lives with the Mother. All siblings had regular contact, the eldest son did not have much contact with the mother, the youngest son did.
- In 2016 the father and the boys went on a holiday to the USA that was consented by the mother in accordance to existing orders.
- They did not return to Australia after the holiday concluded, the Father and boys wanted to remain living in the USA and contacted the mother to tell her so. The move overseas, however, was a breach of the existing parenting orders.
- The boys were clear they wanted to stay in the USA with their father.
- However, the mother wanted them to be returned to Australia (and so did their sister), she filed orders in addition to proceedings brought in the United States under the Hague Convention.
- The primary judge made interim orders for return of children to Australia and for living arrangements upon return.
- It was uncertain where the boys should be placed to reside if the father did not return to live in Australia, they expressed they did not want to live with the mother or sister, the court granted the children live in supervised accommodation paid by the father or to reside with parents of their friends.
- The Father appealed and it was dismissed
- The Father then was given leave to appeal the decision to the High Court.
ISSUE:
- Was it incorrect to discount weight given to views expressed by children?
- Was the father's breach of parenting orders relevant to children's best interests?
- And is it necessary to determine children's views as to living arrangements?
HELD:
Appeal by the Father dismissed.
The High Court supported the primary judge’s application of discretion in not placing as much weight on the boys’ views and that ‘other factors’ needed to be considered (such as relationship to mother and sister, relatives etc).The High Court held that Section 60CC(3)(a) only requires those views ‘expressed’ by a child to be considered and ascertaining a child’s view is not statutorily mandated.
Furthermore, the court determined the boy’s views were under the influence of their father, the High Court states: ‘Although accepting evidence that the boys wished to remain living with the father in New York, Justice Watts considered the weight of those views to be ‘weakened by the circumstances which have been contrived by the father.’
Moreover, the high court further specified at [39] the father's flagrant disregard of the parenting orders was a matter relevant to the child's best interests under s 60CC(3)(i).
Despite the boys’ strong desires to reside in the USA with their father, they were ordered to reside in Australia, this was in the child’s best interest, if the father did not return to reside with the boys it was ordered they were to live in supervised accommodation paid for by the father or with parent’s friends.
Case Summary from the High Court