Bondelmonte v Bondelmonte [2017] HCA 8
The Case
This was a case which reached the High Court. It concerned the return to Australia of two teenage boys, aged nearly 17 and 15, who at the time were holidaying with their father in New York. The father had overextended their holiday to the United States by notifying the mother that the two boys would now live with him permanently in the U.S. The mother remained in Australia with their daughter, aged nearly 12 at the time. The mother opposed the father’s proposed permanent stay with the teenage boys. The mother made an application seeking the boys’ return to Australia. Supporting his application, the father sought to rely on the boys’ expressed wishes to remain with him in New York. At the time, the father could not give a definitive answer as to whether he would return to Australia in the event the boys were ordered to return.
Background
The parties to this case had parenting orders made between them around 3 years prior. Those orders provided for the parties to have: –
- Equal shared parental responsibility.
- The children to live between the parties according to the parties’ election, or determined by the children.
- That the parties be able to travel overseas with the children provided adequate notice was provided to the other party.
At the Full Court hearing (prior to the High Court hearing), it was agreed that the proper interpretation of point (2) above was that the children could not, independently of their parents, decide where to live either within Australia or abroad.
The issues
There were a few issues for determination in the High Court, namely: –
- Whether the Full Court failed to give “a proper, realistic and genuine consideration” to the children’s expressed views to remain in New York with the father?
- Whether there was a legal basis for making orders with respect to the children’s family friends, namely the mother‘s of the teenage boys’ Australia-based friends, for the purpose of housing the boys on their return to Australia?
Issue 1 – Consideration of the children’s views
One would assume that the views of a teenager would carry considerable weight in parenting litigation. After all, how can a Court force a teenager (e.g. a near 17 year old) to live with the other parent if they don’t want to? In ordinary circumstances (of which this case is not one of them), the teenager’s views may carry the day. However, here there was a case with a few distinguishing factors, namely:
- The father had for some time before the unilateral relocation expressed to the children of his desire to move to the U.S permanently with them.
- The new arrangement would cause the boys, their mother and sister to be ocean’s apart, significantly compromising their future relations.
- The father had breached the existing parenting orders by his decision to unilaterally relocate.
- The suggestion that the children’s views were not independently held, but rather inadvertently influenced by the father’s communications expressing a wish to relocate.
- Urgency considerations as the teenage boys were due to resume schooling in Australia on their return.
The father’s counsel in the Full Court urged the Court to consider ordering a “children’s express wishes report” from the U.S. This was denied due to the above concerns relating to the independence of the children’s views. It was deemed better for the parties to have a Family Report conducted in Australia where the dynamics of the relationship could be revealed and the wishes of the teenage boys considered alongside.
Issue 2 – Orders binding 3rd parties
One issue posed by the father was whether parenting orders could be made in relation to the household friends of the teenage boys. As the father did not indicate to the Court whether he would return to Australia with the children, the Court was dealing with various unknowns in terms of where the children would live. Either the children could live in temporary paid supervised accomodation, or with family friends from school. The Court ultimately ordered the teenage boys to live with longstanding friends, in circumstances where the mothers of those boys had provided undertakings (“Legal Promises”) to the Court that they would “nurture and care” for the teenage boys.
The Court relied on section 64C of the Family Law Act 1975 (Cth) in support of the parenting order binding the longstanding family friends: –
64C – Parenting orders may be made in favour of parents or other persons
A parenting order in relation to a child may be made in favour of a parent of the child or some other person.
The father’s challenge to the parenting order binding the children’s longstanding friends then failed.
Significance
This case was significant for how the Court treated the children’s views. The views of children can be ascertained by the Court to guide its process in making parenting orders that are in the best interests of the children. As a broad and general principle, the older (and more mature) the child is, the more weight will be given to their expressed views. However, as the Court said in this case, their views and not determinative. What a child says does not necessarily go. In this case, the children’s expressed views to remain with their father in the United States had to be seen in context. This context was the father having expressed his views to permanently relocate over some time, as well as the relationships the children would leave behind in Australia, namely to their mother and sister.
As these were interim orders, the Court thought it better to order their return of the teenage boys, pending the final determination of the permanent relocation issue. By the time a final trial eventuated, the Court would be equipped with more information in the form of a Family Report.
