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Key decisions

  • Bondelmonte & Bondelmonte [2016] FamCAFC 48
  • Farnell & Anor and Chanbua [2016] FCWA 17

Parenting – relocation – trial Judge did not err in making orders against wishes of 15 and 17 year old children to remain in New York with their father

In Bondelmonte & Bondelmonte [2016] FamCAFC 48 the full Court (Ryan, Aldridge and Le Poer Trench JJ) considered a father’s appeal against orders requiring him to return the parties’ two boys aged almost 15 and 17 to Australia pending final determination regarding residence.

2014 consent orders provided for equal shared parental responsibility and that the children live with the parties as agreed or at the children’s own election (at [18]).  The eldest son lived with the mother and the younger son largely lived with the father. The parties’ daughter lived with the mother.

In January 2016 the father and boys went on a two week holiday to New York with the mother’s consent. Prior to their anticipated return, the father’s solicitor informed the mother that the father had decided to remain in the United States indefinitely and the boys had elected to stay with him (at [35]). The mother filed an urgent application seeking orders the children return to Australia, and pending further order, live with her. She later acknowledged the boys may not want to live with her and proposed other persons they could live with.

The trial Judge found it was in the best interests of the boys to return to Australia pending final determination as to whether they could relocate to the United States. The father appealed on the basis the trial Judge failed to give appropriate weight to the views expressed by the boys.

By majority, Ryan and Aldridge JJ dismissed the father’s appeal. Their Honours stressed a Judge is not ‘obliged to make orders consistent with a child’s stated views.’ Instead a Court must consider the weight to give a child’s view including not just maturity and age, but also ‘context is critical and it is a matter for the judge to determine how giving effect to a child’s stated view accords with the child’s best interests’ (at [97]).

Ryan and Aldridge JJ found the trial Judge carefully considered the boys’ wishes, found they were genuinely held, but that the father’s desire to live in the United States had influenced the boys (at [103]) and in their recent ‘bedazzlement’ and ‘excitement’ with New York they failed to ‘reflect on the loss of important aspects of their lives in Australia, for example, their sister and mother’ (at [104].) Ryan and Aldridge JJ found this approach was open to the trial Judge in making orders in the children’s best interests.

Le Poer Trench J dissented on the basis the trial Judge should have obtained additional evidence before ordering the boys’ return (at [209]) and ‘there was a failure to obtain any view of children, whose age dictated their views could be given significant weight, in relation to a proposal which effectively was a residence order in favour of’ either a parent they did not usually live with or other persons who had not acted in any parenting capacity towards them (at [211]).

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