When parents separate, they are generally expected to make reasonable attempts to resolve disputes about their children’s living arrangements, care, and responsibilities.
In most cases, separating parents must attempt family dispute resolution before applying to the Court for parenting orders, unless an exemption applies, such as in cases involving family violence, urgency, or other circumstances where dispute resolution is not appropriate.
If an agreement cannot be reached, the matter may need to be determined through proceedings in the Federal Circuit and Family Court of Australia under the Family Law Act 1975 (Cth) (the ‘Act’).
When making parenting decisions, the Court’s primary consideration is the best interests of the child. This requires the Court to consider a range of factors, including the child’s views and circumstances.
How Does the Court Determine a Child’s Best Interests?
The Court considers a range of factors when deciding what parenting arrangements are in a child’s best interests. These include:
- the safety of the child and any risks of physical or psychological harm;
- the child’s developmental, psychological, and emotional needs;
- the capacity of each parent to provide for the child’s needs;
- the benefit of children maintaining relationships with people who are significant to them, where it is safe and appropriate;
- any views expressed by the child and the factors that affect the weight given to those views.
The Court does not automatically assume that a child should spend equal time with each parent. Instead, parenting arrangements are determined based on what best supports the child’s welfare and interests in the individual circumstances.
Parents may also share parental responsibility for major long-term decisions affecting their children, such as education, health, and cultural matters. However, the Court will consider the specific circumstances of each family when making parenting orders.
What Role Do a Child’s Views Play in Family Law Matters?
When determining what is in a child’s best interests, the Court must 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”.
This means that a child’s views are important, but they are not the only factor the Court considers. The age, maturity, understanding, and circumstances surrounding those views will all be relevant.
Some people believe that the views of an older child or teenager will automatically determine the outcome of parenting proceedings. However, this is not the case.
This was confirmed in the High Court decision of Bondelmonte & Bondelmonte & Anor [2017] HCA 8, which demonstrates the discretionary approach the Court takes when determining parenting matters.
The Facts of Bondelmonte & Bondelmonte
The Bondelmonte case involved parenting arrangements for three children. Two teenage boys, aged almost 15 and 17 years, primarily lived with their father and had limited contact with their mother. Their younger sister, aged almost 12 years, lived with their mother and had minimal contact with their father.
The existing arrangements were generally accepted by both parents until the father took the two boys to New York for a holiday and later decided to relocate there indefinitely.
The mother objected and sought urgent interim orders. The father was ordered to return the boys to Australia until the matter could be finally determined.
The matter proceeded to the High Court, where the father argued that the boys had expressed a preference to remain living in New York with him. He argued that, due to their ages, their views should determine the outcome.
The High Court acknowledged that the boys wanted to remain living with their father. However, the Court determined that this was not enough to establish that the proposed arrangements were in their best interests.
The Court confirmed that while a child’s views must be genuinely considered, those views must be assessed alongside other relevant factors. This includes whether the child understands the possible impact of their decision and whether their views may have been influenced by another person.
The High Court ultimately declined to make the orders sought by the father.
Key Lessons From the Case
In parenting proceedings, it is important to distinguish between allowing a child to express their views and requiring a child to participate directly in legal proceedings.
Children should not be placed in the position of proving disputed facts or feeling responsible for decisions about their parents. The Court aims to ensure children have an appropriate opportunity to express their views without pressure or influence.
The Court may consider different methods of understanding a child’s views, including:
- expert evidence;
- family reports prepared by court-appointed experts;
- counsellor reports; and
- the involvement of an independent children’s lawyer where appropriate.
The level of involvement will depend on the child’s age, maturity, and individual circumstances.
Conclusion
The Court has significant discretion when deciding parenting matters and will take a comprehensive approach to determine what arrangements are in the best interests of the child.
While a child’s views are an important consideration, they are only one of many factors the Court must assess. The ultimate focus remains on ensuring parenting arrangements support the child’s safety, wellbeing, and development.
Need Advice About Parenting Arrangements?
Family law matters involving children can be complex, particularly when parents cannot agree on future care arrangements. Our experienced family lawyers can provide practical advice and help you understand your options.
Contact Somerville Laundry Lomax today to discuss your situation with our legal team. Call us on 02 6621 2481 or email [email protected] to arrange a confidential consultation.