Separating couples are generally required to make reasonable attempts to resolve disputes about the future living arrangements, care and responsibility of their children. Unless there are extenuating circumstances, dispute resolution is compulsory if agreement cannot be reached.
If dispute resolution fails, then the matter may need to be resolved through Family Court proceedings under the Family Law Act 1975 (Cth) (the ‘Act’).
The Family Court has considerable discretion when determining children’s matters. The child’s best interests will be the overriding consideration in the Court’s decision. This requires that the Court address a number of factors – one of these is the views of the child.
Determining the child’s best interests
The following matters are some of the factors the Family Court will consider in determining a child’s best interest
- children should know and have the benefit of a meaningful relationship with both parents;
- children should be protected from physical and psychological harm and harm resulting from them being subject to family violence;
- children should receive parenting that allows them to reach their full potential;
- parents should cooperate in determining what is best for the children;
- unless a child is at risk, parental responsibility should be equally shared and children should have the right to spend time on a regular basis with both parents and other people significant in their lives.
When determining orders regarding arrangements for children there is a presumption of shared parental responsibility. This means that each parent should be jointly and equally responsible for significant long-term decisions concerning their children such as their health, welfare, religious and cultural upbringing, and education.
The Court must also give consideration to orders for a child to spend equal time with each parent or if equal-time living arrangements are not appropriate, the child spending substantial and significant time with each parent.
What about the views of a child?
In determining what is in a child’s best interests the Court must, amongst other factors, consider ‘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’.
As a consequence, some people believe that the views of an older or teenage child will be the turning point in proceedings regarding living arrangements. This is not the case, as confirmed in the case of Bondelmonte & Bondelmonte & Anor  HCA 8. The case reiterates the very discretionary approach the Family Court may take in deciding children’s matters.
The Bondelmonte case concerned parenting arrangements whereby two teenage boys (aged almost 15 and 17 years) lived primarily with their father, having little or no contact with their mother, whilst the daughter (almost 12 years) lived with the mother and had minimal contact with the father.
The arrangement was generally acceptable to the parties until the father took the boys to New York for a holiday and subsequently decided to make this their indefinite home.
The mother objected seeking urgent interim orders and the father was ordered to return the boys to Australia until the matter was ultimately determined.
The matter proceeded to the High Court with the father arguing that the boys had expressed a preference to remain in New York with him and that, in light of their respective ages, the boys’ views should be determinate of the outcome of the proceedings.
The Court acknowledged that the boys did express a desire to reside with the father however determined, in the circumstances, that it was in their best interests not to make the orders sought by the father.
The Court confirmed that, whilst the Act requires that the views of a child should be genuinely considered, the Court must exercise discretion in the context of several other matters. In particular, the children’s views being influenced by a parent and the need to assess their ‘choice’ in light of their respective ages and maturity. In other words, the Court was required to assess the boys’ understanding (or absence thereof) of the potential impact their decision would have on the relationship between them and their mother, and their sister.
The High Court declined to grant the orders sought by the father.
In children’s proceedings, it is important to discern between requesting a child to give evidence and providing an opportunity for a child to express his or her feelings on a particular matter.
Children should not be involved in proceedings merely to attest to a disputed fact and proceedings must be balanced to ensure that the child can voice an opinion that truly is his or her own. The Court will attempt to unveil the possibility of coercion or manipulation leading to the views expressed by a child.
Flexibility and discretion in Family Court proceedings is critical to ensure the level of participation is appropriate to the age, maturity and any other relevant needs of the child. This may be facilitated by utilising expert witnesses, counsellor’s reports or through a child’s representative.
The Family Court has significant discretion and will take a comprehensive approach to determine what is in a child’s best interests when deciding living and care arrangements.
Whilst the views of children are important factors and must be given genuine consideration, they are only one or many matters that a Court is required to consider in determining the best interests of the child.
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