Children’s wishes in family law proceedings - relevant but not determinative Children’s wishes in family law proceedings - relevant but not determinative

Children’s wishes in family law proceedings - relevant but not determinative

10 April 2017 | Children's Disputes

The High Court of Australia has recently reiterated that children’s wishes are relevant, but not determinative, in parenting proceedings arising under the Family Law Act 1975 (Cth) (the Act).

The case of Boldemonte v Boldemonte delivered on 1 March 2017, concerned a family of considerable means with three children, two sons and a daughter. The parties had separated in 2010, and in 2014, interim parenting orders had been made by consent in the Family Court. The 2014 interim parenting orders allowed, amongst other things, the parties to take the children for international holidays provided that relevant information was given to the non-travelling parent (i.e. an itinerary etc).

On 14 January 2016, Mr Boldemonte and the parties’ two sons travelled to New York for a holiday despite not complying with the 2014 interim parenting orders. Ms Boldemonte reluctantly agreed to the holiday as a result of pressure from Mr Boldemonte. The parties’ daughter did not attend the holiday.

On 26 January 2016, Mr Boldemonte decided that he wished to remain living in New York and on 29 January 2016, Mr Boldemonte’s solicitors conveyed to Ms Boldemonte that their sons also wished to remain living in New York. Following receipt of that correspondence, Ms Boldemonte commenced an interim proceeding in the Family Court seeking the return of the boys. She also commenced a proceeding in the United States of America for the return of the boys in accordance with the Hague Abduction Convention.

Mr Boldemonte sought to resist Ms Boldemonte’s interim application to the Family Court. In support, he filed evidence setting out the boys’ wishes to remain living with him in New York. Mr Boldemonte subsequently filed further evidence to the effect that Ms Boldemonte was too frail to care for the boys and that they may not elect to live her if compelled to return to Australia.

Interim parenting orders were made by the Family Court of Australia requiring the boys’ return. At that time, the parties’ sons were nearly 17 years old and nearly 15 years old. The parties’ daughter was nearly 12 years old. It was accepted that the boys had lived primarily with Mr Boldemonte and the parties’ daughter primarily with Ms Boldemonte following the making of the 2014 orders. Further, the parties’ eldest son was effectively estranged from Ms Boldemonte.

Mr Boldemonte unsuccessfully appealed the Family Court’s decision to the Full Court of the Family Court. He was subsequently granted special leave to appeal to the High Court, contending that the Judge in first instance did not give “proper, genuine and realistic consideration to the views of the boys in relation to the interim parenting orders…[and that] his Honour was required to put in train a process by which the boys’ views as to each of the alternative living arrangements…could be ascertained.

The High Court considered Mr Boldemonte’s contention and dismissed his appeal. In so doing, the Court held that, amongst other things, the views or wishes of children “are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests” and that the Court will “take into account not only the views expressed by the child, but also “any factors…that the Court thinks are relevant to the weight it should give to the child’s views.” The factors that the provision gives as relevant are the child’s maturity or level of understanding, but plainly the Court may consider other matters to be relevant.

The High Court’s decision in Boldemonte serves as a reminder that the views or wishes of a child or children are but one of the factors relevant to the determination of parenting orders in the child or children’s best interests. Those views or wishes are relevant, but not determinative to the exercise of the broad discretion contemplated by the Act.

Will Stidston

Will Stidston

Senior Associate