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HIGH COURT CASE OVERRIDES TWO TEENAGERS’ WISHES- TO LIVE WITH THEIR FATHER OVERSEAS.

Wed, 26 Apr 2017

HIGH COURT CASE OVERRIDES TWO TEENAGERS’ WISHES- TO LIVE WITH THEIR FATHER OVERSEAS.

A recent landmark case heard before the bench of the High Court (and attracting the medias attention), has confirmed that it is in the best interests of two children (in this case two boys, aged almost 15 and 17) to return to Australia and live with their mother, despite their wishes to remain living in New York with their father.

In this matter, there were three children of the marriage (the two brothers and one sister) and parenting orders had been made by the Family Court in 2014 that the parties were to have equal shared parenting responsibility of the children, and that they could be taken by either parent on an overseas holiday, provided that certain conditions were met. Relevantly, there was also a clause in the order that enabled each child to decide with whom they would like to live.  

Apparently, the eldest boy was completely estranged from his mother while the younger boy maintained contact with her. After the orders were made, the two boys lived with their father, and their sister lived with their mother in Australia.

In mid-January 2016, the father took the two boys with him to New York on a proposed holiday (with the consent of the mother in accordance with the orders), but whilst he was overseas his lawyers informed the mother that he was remaining in the USA indefinitely, and that the boys had chosen to stay with him.

Upon being informed of the father’s intentions, the mother filed an urgent application with the court to have the boys returned to Australia, and further, applied for an order that they reside with her, pending the orders being made.

When the mother’s application was heard, orders were made by the Family Court that the boys be returned to Australia and if they did not want to reside with their mother, then they should be accommodated by family friends, should the father choose to remain in the USA.  The Father appealed the decision to the Full Court of the Family Court which was rejected. The father then applied for, and was granted, special leave to make a further appeal to the High Court.  The decision handed down by the High Court confirmed the Family Court and Full Family Court’s initial decisions, finding that despite their ages and their wishes to live with and remain with their father in the USA, it was not in their best interests to do so, and thus, the father’s appeal was dismissed and he was ordered to pay costs.

Prior to this decision, it was often thought that once a child had reached an age of about 15 or 16, their expressed desires to reside with a particular parent were likely to be met by the court, if parenting orders were requested.  However, in practise this is not necessarily the case, as each matter turns on its own facts, and the Family Law Act 1975 (‘FLA’) requires that parenting orders are made in the best interests of the child/ren, and Section 60CC of the FLA sets out a range of factors which are to be taken into consideration when determining the best interests of the child/ren.

There are two primary considerations which the Judge must take into account when determining parenting orders: being the benefit to the child of having a meaningful relationship with both parents; and the need to protect the child from physical/psychological harm by way of abuse, neglect or family violence. Expressed wishes by the child are only one of at least twelve (12) additional considerations which a Judge must also consider when making parenting orders.

In fact, the FLA does not set down any specific guidelines for the Judge when determining the actual weight to be given to a child’s wishes, and accordingly the child’s age, level of maturity and understanding, sex, lifestyle and background (including cultural traditions and heritage) are usually taken into consideration when contemplating this additional consideration.

This High Court case has made it very clear that the best interests of the child or children involved in a parenting matter are indeed the paramount consideration in accordance with the primary considerations prescribed under the FLA, and the additional considerations which should be considered are indeed secondary considerations.  It further confirms that each case turns on its own facts, and that there is no black and white answer when deciding parenting matters.

If you are experiencing separation or children’s issues, our Gold Coast family law team are professional and experienced and able to provide you with advice tailored to your specific circumstances.

Please feel free to telephone our Gold Coast office today on 07 5563 8970 to arrange a convenient and complimentary appointment to discuss your matter.

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