In the case of Bondelmonte  FamCAFC 48 (8 April 2016) the Full Court consisting of Ryan, Aldridge and Le Poer Trench JJ heard a father’s appeal against orders made by Watts J in a relocation case involving two boys. The matter considered what should be regarded as the ‘primary’ and ‘additional considerations’ of the children pursuant to s 60 CC (2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).
This case involved a unilateral relocation to the US sought by the father while on holiday with his two sons ofalmost 17 and 15 years of age. The two boys wished to reside with their father whilst their 12 year old siblingc ontinued to reside in Australia with the mother. The existing orders made in 2014 were for equal shared parental responsibility and the three children were to live with the mother and father as agreed between the parties or at the children’s own election.
The family lived in Australia until January 2016 when the father took both sons for a holiday to New York with the mother’s consent. During the course of holiday the father expressed to the mother his intentions of remaining in New York indefinitely with the two sons.
The father gave evidence under oath that the boys expressed their wish to remain in New York with their father. The children claimed they had an estranged relationship with their mother, therefore, did not wish to return. The mother was granted a recovery order and the father’s appeal was dismissed. The Court reinforced in relation to a child’s view that “context is critical”.
Central Issue in the Case
The central issue in this matter was whether the children’s views should be taken into consideration. In this case “context was considered to be critical”. The Court ruled that the children be returned to their mother and that a report was required that dealt with more than simply the boys’ views.
The Court ruled the report was required to assess the dynamics of the sibling relationships and their respective relationships with their parents.
Ryan and Aldridge JJ in the majority held that the primary judge was satisfied it was in the best interests of the two boys to return to Australia pending a determination about whether, in the long-term, they would continue to reside in Australia or relocate to the United States.
If the father decided to return to Australia with the two boys, they were to continue living with him, however, if he remained in New York, the boys would live with the mother in Australia. As the boys had a strained relationship with their mother, the Orders provided that the mother and boys could make arrangements for the boys to stay with nominated third parties without the father’s approval.
His Honour mandated that a report which dealt with more than simply the boys’ views was necessary as the Court would not examine such factors as to the dynamic of the sibling relationship and also each sibling’srelationship with their parents. The report was ordered to take place in Australia where all family members were able to participate.
His Honour expressed disdain in the father’s breach of the orders and in doing so the father demonstrated poor judgement as a parent and ‘as a role model to the boys’. For the Court to agree with the father’s behaviour would fail to acknowledge what might be considered appropriate parental behaviour.
Section 60CC(2) and (3) of the Act requires consideration of following:
the boys’ expressed views as against the damage currently done to the mother’s relationship with both sons;
the father and daughter relationship; and
the daughter’s relationship with her brothers by the unilateral action of the father.
These factors need to be considered alongside the history and family dynamics and any identified risk factors.
If not for the mandated order to return both children to Australia, the Court raised concern that the above relationships will be irretrievably damaged. Therefore, the Court found it in the best interests of all three children to make the orders for the return of the boys to Australia.
Father’s Grounds for Appeal
As there was an order for equal shared parental responsibility pursuant to s 65DAA, the father relied on the ground of appeal that the Court was obliged to consider whether or not an order for equal or substantial and significant time was in the best interests of the children and reasonably practicable prior to ordering the return of the boys to Australia. However, the Court did not accept that an application for an order that a child lives exclusively with one or another parent is an application for substantial and significant time.
Section 65DAA (2)(b) of the Act requires that the Court consider whether the child spending time with each parent would be in the child’s best interests. The father also contended that sufficient weight was not given to the children’s views.
However, in the case of Maldera, it was found that it is not a requirement for a judge in his Honour’s position to make orders consistent with a child’s stated views. Instead, a primary judge is required to consider the weight to be given to such views.
Factors Giving Weight to a Child’s Expressed Views
The Court stated there are a range of factors that may affect the weight given to a child’s expressed view which include age and level of maturity of the child in question. Therefore, context is critical as it is a matter for the judge to determine how giving effect to a child’s stated view aligns with the best interests of the child.
The case of R & R (Children’s Wishes)  FamCA 383 illustrates this point. The parties and the Court were satisfied that each child could choose who they would live with in Australia. The children, however, were not permitted to make other significant long-term decisions as that power remained vested in the parties jointly. The majority dismissed the father’s appeal and ordered that the father pay the independent children’s lawyer’s costs.
Allowing the Appeal
Le Poer Trench J allowed the appeal on the basis that the hearing should have been adjourned with the mother required to provide additional information about the proposal for the children to live with the volunteers.
Furthermore, the independent children’s lawyer should have been given an opportunity to investigate the proposal in the usual way that it is carried out. The father should have also been required to notify the Court of his intentions to accompany the boys on the trip back to Australia in the event the order sought by the mother is granted.
Le Poer Trench J also believed the father should have been given an opportunity to put forward a proposal to house the boys in Australia pending the determination of the mother’s parenting application and any simultaneous parenting application he would be entitled to make. Le Poer Trench J believed there was no urgency in the matter that should have disregarded these requirements.