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Key decisions

  • Bondelmonte v Bondelmonte [2017] HCA 8
  • Minister for Immigration and Border Protection v Kumar [2017] HCA 11
  • Perara-Cathcart v The Queen [2017] HCA 9
  • Prior v Mole [2017] HCA 10

Family law

Parenting orders – best interests of children – views of the children

In Bondelmonte v Bondelmonte [2017] HCA 8 (1 March 2017) the High Court considered the requirements of the Family Law Act 1975 (Cth) with respect to the consideration of the views of children and interim parenting orders. The parties to the appeal were the father and mother of three children. The two eldest (aged almost 17 and 15) had been taken to New York by the father for a holiday. The father decided not to return, keeping the children with him, in breach of parenting orders that provided for equal parental responsibility, required the children to engage in a Child Responsive Program and provided for parental interviews. The mother applied for the children to be returned to Australia. The father did not indicate what he would do if orders were made for the children’s return. The children had expressed a desire to remain with the father.

In making orders, the Family Court was required to consider, relevantly, the best interests of the children and any views they had expressed. The primary judge made interim orders for the children’s return, considering their views but giving them limited weight because of the father’s influence over the children. The children were ordered to return to live with the mother or, if the children preferred, identified parents of friends. The father appealed, arguing that the children’s views had not been properly considered and that there was no power to order custody in favour of the friends’ parents.

The High Court held that the primary judge was entitled to take account of the father’s influence in giving weight to the children’s views. The judge was also not required to ascertain the children’s view on the alternative living arrangements – only to consider views that had been expressed. Lastly, the High Court held that there was power to make parenting orders in favour of a parent of a child ‘or some other person’, which included the friends’ parents. Kiefel, Bell, Keane, Nettle and Gordon JJ jointly. Appeal from the Family Court dismissed.

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