Following a hearing before the Full Court, Kiefel J stated that at least a majority of the Court were of the view that the appeal should be dismissed, and made that order. Reasons for judgment were published on 1 March 2017.
The Court (Kiefel, Bell, Keane, Nettle and Gordon JJ) unanimously dismissed the appeal, rejecting the appellant father’s two contentions. The first contention was that the primary judge erred in inadequately considering the boys’ views in the enquiries preliminary to making a determination of their best interests as required by s 60CC, specifically in discounting the boys’ views about remaining in New York because the primary judge disapproved of the father’s actions, and in not putting in place a process to ascertain the boys’ views of about possible alternative living arrangements (at ). The Court rejected the appellant’s suggestion that the primary judge’s decision to give less weight to the boys’ preferences was motivated by the judge’s evaluation of the father’s actions (at ). Rather, the primary judge, following s 60CC(3)(a), took into account other factors relevant to determining the weight to be accorded to the child’s views: here, that was the extent to which the boys’ views had been influenced by the father, which was clearly relevant to the weight to be given to their stated preferences (at ).