In the recent High Court decision of Bondelmonte v Bondelmonte [2017] HCA 8 the issue of the weight to be given to children’s views as to their living arrangements was considered in circumstances where the father had removed the children to New York.

The parents had separated in 2010 and at the time of the hearing in December 2016 the older two sons were 15 and 17 years of age. Parenting Orders made in 2014 had provided for the parents to have equal shared parental responsibility and also that

That the children live with the husband and the wife as agreed between the parties or at the children’s own election.

It was accepted that this did not mean the children could decide where they lived independently of the parents.

In January 2016 the father took the two sons to New York and informed the mother he was remaining there and the sons had elected to live with him. At this time the older child was estranged from his mother.

At first instance, Orders were made for the father to return the children to Australia. In making this decision the Judge accepted evidence from the father that the children wanted to live with him in New York, although it was also found that the father had significantly prejudiced the children’s views and therefore weakened the weight placed on those views.

The father’s appeal to the Full Court of the Family Court of Australia was dismissed and he appealed to the High Court.

The High Court stated that the father’s argument elevated the views expressed by the children to something approaching a decisive status, but this was rejected and it was confirmed that children’s views are only one consideration to be taken into account. It was acknowledged that in some cases attributing such weight could be appropriate. The High Court provided an example of a child not understanding the longer term implications of separation from a parent or other siblings as reasons not to attribute significant weight to their views.

The appeal was dismissed.