Unilateral Relocation by mother – Bringing the Children Back and Where do they Children Live? – Court orders child to be returned to Father

13/08/2018

Watson & Watson act in relation to an Application for Return of Children and an Application to Prevent Unilateral Relocation. Our most recent matter was successfully concluded.

The circumstances were that the mother and father lived in the same country town in southern New South Wales.  They had separated some years ago and there was in place an arrangement between them where the children lived with each of their parents for part of the week and effectively moved between the mother’s household and the father’s household.  The children attended the same school and had significant family and social connections within the area they lived.

The mother formed a new relationship and without the father’s permission or agreement and without notice to the father took the children on a day when they with her pursuant to the existing arrangement, to Queensland.

The father was not given any notice of this event and was not told where the mother would be residing with the children or what the arrangements for the children’s future care, contact arrangements for the father and development were to be.

The father opposed this action and investigations were undertaken to ascertain the location of the mother and the children.

Firstly we had to ascertain where the children where take, and other matters concerning the welfare of he children without the mother becoming aware.

Based on these investigations an urgent Application was made to the Federal Circuit of Australia.  We had to establish to the Court that the means of service of the application would bring the application to the mother’s notice.  At the urgent hearing orders were obtained for return of the children.  There had been no existing parenting orders in place but the Court made the order for return of the children and made an order that the father have sole parental responsibility and that they live with him.  However the Court allowed the mother to spend time with the chil

Having dealt with the urgent issue and having the children returned to their home, their schools, their family and friends, the Court was asked to determine whether or not:

1.        The children should be allowed to relocate to Queensland with the mother; or

2.        Whether the children should remain with their father and spend time with their mother in Queensland or elsewhere?

Watson & Watson were successful in obtaining orders that the children remain living with the father and spend time with the mother.

In reaching this decision and on the basis of significantly prepared Affidavit material the Court took into account the principles in relation to relocation which are:

1.        The Court cannot determine the issues in a way that separates the issue of relocation from that of residence and the best interests of the child/ren.

2.        Compelling reasons for or indeed against, the relocation need not be shown.

3.        The best interests of the child/ren are to be evaluated taking into account considerations including the legitimate interests of both the residence and non-residence parent.

4.        Neither the applicant nor the respondent bears an onus of proof.

5.        Treating the welfare or best interest of the child/ren as the paramount consideration does not oblige a court to ignore the legitimate interests and desires of the parents.  If there is a conflict between these considerations, priority must be accorded to the child/ren’s welfare and rights.

6.        If a parent seeks to change arrangements affecting the residence of, or contact with the child/ren, he or she must demonstrate that the proposed new arrangement, even if that new arrangement involves a move overseas, is in the best interests of the child/ren.

If you have any concerns or misgivings regarding your ex partner/spouse relocating with your child/ren or if this has already occurred and you require an urgent application, please contact Richard Watson our Senior Family Law Solicitor or his Personal Assistant Shereen Da Gloria to discuss your matter and take the appropriate legal action available to you in these circumstances.

This is only a preliminary view and is not to be taken as legal advice without first contacting Watson & Watson Solicitors on 02 9221 6011.

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