Do Children’s Views Matter in Parenting Proceedings?

Recently the High Court of Australia looked at the question of the weight that the Court should give to children’s views. Often you’ll hear lawyers say that when a child reaches adolescence, their views tend to have a determining impact on the Court’s determination. Afterall, try and tell your teenage son/daughter what they should or should not do (I know right…), let alone telling them whether they should or should not live…

But you might have to rethink that in light of the High Court’s latest decision, handed down in the case of Bondelmonte v Bondelmonte. In essence, the Court made it very clear that where the Court is called upon to determine where children should live, it will ultimately come down to the paramount consideration of what is in the children’s best interests and their views are only one of many factors for the Courts to consider.

In this particular case, the children were 15 and 17 years of age. In January 2016, they went for a holiday to the United States with their father. After two weeks, their father decided that he was going to make New York his new home and that the children should stay with him. The mother commenced proceedings for the recovery of the children and was successful at first instance before the Family Court and subsequently in the father’s appeal to the Full Court of the Family Court before the decision was finally and definitively upheld by the High Court of Australia.

It should be noted that the children expressed very clearly that their preference was to remain living with their father. The father attempted to “elevate the views” put forward by the children to “something approaching a decisive status”, but the Court noted that this is in fact “but one consideration of a number to be taken into account in the overall assessment of a child's best interests”. Example of other considerations in this instance were, amongst others, that the children showed little insight into how their move would affect their relationship with their younger sister and their mother, as well as the extent to which their views had been influenced by the father himself.

So there you have it… Yet another family law myth is put to bed by this latest stance of our highest Court. The message is loud and clear. Parents and the Courts have an obligation to look at children’s best interests in a wholistic manner and will not be held hostage to children’s views. So long as they are under 18, their best interests are still subject to the opinion of the adults responsible for them and if they cannot agree, then the Court will fulfil that responsibility.

So there you go… fresh ammunitions for those parents working hard to ensure that their best interests are ensured and that their whims are not simply accepted by the Court as the only way forward. If you or anyone you know find themselves struggling with similar issues, tell them to come see us at Fedorov Lawyers and we’ll make sure to give them advice based on all relevant considerations that the Court may consider in forming their view.

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Custody and parenting

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