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The wishes of children & relocation

The Wishes Of Children & Relocation

Sometimes after separation one party wants to relocate with the children.

How should you go about this and what impact does the wishes of the children have?

The recent case of Bondelmonte v Bondelmonte recently went to the High Court. The simplified facts were:

  1. The parties had 3 children. The 2 older children were boys and the younger child was a girl.
  2. On 25 June 2014 parenting orders were made with the consent of the parties providing:
  3. That the children live with the each of the mother and father as agreed between the parties or at the children’s election.
  4. That each party be permitted to take the children out of Australia for a holiday.
  5. In December 2014 the mother commenced fresh parenting proceedings. As part of that process the children were due to attend an interview with a family consultant in January 2016.
  6. In January 2016 the father took the boys to New York for a holiday.
  7. On 29 January 2016, while still in the USA, the father informed the mother that he had decided to live indefinitely in the USA and that the boys would remain with him.
  8. The mother filed an Application seeking the return of the boys.
  9. The matter came before a Judge for interim hearing. At that time the boys were almost 17 and 15. The girl was almost 12.
  10. Prior to the holiday to New York:
  11. The oldest boy was living with the father and was not spending time with the mother;
  12. The younger boy was living with the father and spending time with the mother (the amount not entirely clear); and
  13. The girl was living with the mother and spent weekends with the father (the amount of time not entirely clear).
  14. It was common ground that the existing orders did not permit a child to decide, independently of his/her parents, whether or not the child would live in Australia or overseas.
  15. The father’s evidence was that the boys had each expressed a desire to remain living with him in New York.
  16. The father did not say whether or not he would return to Australia if orders were made for the boys to return to Australia.
  17. The mother’s evidence was that the girl was missing her brothers and becoming increasingly upset.
  18. The mother provided evidence that two family friends were each prepared for one of the boys to live with them if they returned to Australia and did not want to live with the mother.

The primary Judge accepted the father’s evidence at point 10. He also found that the actions of the father “have significantly prejudiced and almost certainly coloured any statements the boys may make whilst they are in New York”. He accepted the mother’s evidence at points 12 and 13.

The Family Law Act sets out a number of factors for a Court to consider in determining what is in the best interests of a child. One of the “additional considerations” states “any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views”.

The father sought that a report be obtained in New York as to the wishes of the boys. The Judge thought that this would be of little value while they were living under the influence of their father in New York.

On 8 March 2016 the Judge made interim orders to the following effect:

  1. The boys to return to Australia.
  2. If the father returned to Australia then the boys could live with him.
  3. If the father did not return to Australia then the boys were to live with the mother if they chose to do so.
  4. If they did not choose to live with the mother they could live in accommodation provided by the father with paid supervision services (the father being a person of considerable means).
  5. Alternatively, each of the boys could live separately with the mothers of respective friends.

The father appealed to the Full Court of the Family Court.  His complaint was that that the Judge had failed to pay proper regard to the expressed wishes of the boys. His appeal was dismissed.

The father appealed to the High Court. His appeal was dismissed. The High Court made a number of important points including:

  1. The views expressed by a child are but one consideration of a number to be taken into account in the overall assessment of a child’s best interests.
  2. Children may not, for example, appreciate the long term implications of separation from one parent or from siblings.
  3. In determining the weight to be given to the views expressed by a child it is relevant to consider the extent to which those views have been influenced.
  4. The Court is not required to seek the views of the child. It is required to consider the views that have been expressed.
  5. The Judge would ultimately get the boys’ views on all topics when they went through the process of an interview with a family consultant when they returned to Australia.

It is important to remember that in this case the proceedings were only at an early stage.

A few important lessons:

  • It is not generally a good idea to just up and relocate. Relocation is best done with the agreement of the other party or applying to the Court for an order.
  • Views expressed by a child will be important in some cases, but it needs to be remembered that the court determines the weight to be given to such views. Also, they are only one of a number of factors that the court takes into account in determining what is in the best interests of a child.
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