Bondelmonte v Bondelmonte: The case of the two brothers

Australia’s High Court has ruled in the case of two brothers of divorced parents, deciding that they do not have the right to choose which parent they live with. After a separation in 2010, living arrangements were made which were in the best interests of all parties. Problems arose, however, when the father took the boys on holiday to the United States in January 2016, and later informed the mother of his intention to remain there, indefinitely, with the boys. A judge ordered the boys’ immediate return to Australia, and an appeal made to the High Court by the father to overturn this ruling was rejected.

Decisions made in the children’s best interests

Support has been given to the High Court after a decision was made that rule children of parents who have been divorced do not have the right to make the decision about which parent they get to live with.

In the recently decided case of Bondelmonte v Bondelmonte, the High Court of Australia ruled that both boys, aged 15 and 17 respectively, were not permitted to permanently live with their father in the United States, despite this being their wish.

The boys’ parents separated in 2010, and in a decision made by the Family Court of Australia, the parents were given equal shared parenting orders. It was then decided that the living arrangements were to be agreed between both parents, as well as their children. It was agreed at this point that the two boys would live with their father, while their sister, who is now aged 12, would stay with their mother.

The issue of where the boys would stay arose in January 2016, after their father took the boys on a holiday to New York. The parenting orders allowed both parents to take the children on holidays overseas, however, after the boys and their father had spent two weeks in New York, their father contacted their mother to let her know that he would be remaining in the United States indefinitely, and that the boys would be staying there with him.

Under the Family Law Act 1975, the mother filed an application to have the boys returned to Australia. The application was accepted in Family Court, and Justice Watts ordered that the boys return to Australia. The Court held that it was in the boys’ best interests to return to Australia.

In a statement made by the High Court, it was explained: ‘Although accepting evidence that the boys wished to remain living with the father in New York, Justice Watts considered the weight of those views to be ‘weakened by the circumstances which have been contrived by the father’.

Justice Watts also ordered that alternative living arrangements were to be made if the father were to remain in the United States, and the boys did not want to stay with their mother and sister. This would mean that the boys would either stay in supervised accommodation which was paid for by their father, or with parents of their friends.

An appeal was made by the father to the Full Court of the Family Court. After having his appeal dismissed, he was granted special leave which allowed him to make an appeal to the High Court. The High Court process was not taken part in by the mother of the boys, and therefore an Independent Children’s Lawyer took her place to oppose the appeal made by the father.

The High Court rejected the father’s argument that Justice Watts erred in not taking the decision of the boys to remain in New York into consideration because of his adverse view of the actions of the father. The extent to which the boys’ views were influenced by the father was relevant to the weight the Court gave to those views. The High Court also rejected the argument that the boys’ views on the alternative living arrangements should have been ascertained. The High Court held that Section 60CC(3)(a) only requires those views ‘expressed’ by a child to be considered and ascertaining a child’s view is not statutorily mandated.

What does this mean?

This case dispels the myth that older children in family law proceedings cannot be made to do anything they don’t want to.

The wish of a child is only one of many factors the Court considers when determining what is in the best interests of a child. The weight the Court gives to a child’s wish is largely determined by the individual facts of a case.

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