Can The Children of the Marriage Relocate from their Hometown to Another State?

30/03/2015

William approached Watson & Watson and discussed his concerns with Dennis Grant.  William’s wife Clare decided that she wished to leave Sydney where they lived as a family before separation to move back to Adelaide with her parents and other family members lived.   Clare told William that she would be taking the two young children to Adelaide with her.  William had not seen the children as often as he wished because of difficulties with Clare.  Clare told William that there was nothing he could do to stop her taking the children to Adelaide.  Clare said that William could spend time with the children in Adelaide during their school holidays. 

Even though William had not spent as much time with the children as he would like, Clare in her claims, claimed that it was because William did not wish to spend time with the children.  This was one of those cases where the relationship had broken down and there was disagreement as to most things including the basis of William spending less time with the children than he wished to have. 

As the threat by Clare was imminent there was no requirement for there to be any pre-Court Mediation in an attempt to resolve this issue.  The children had settled into primary school, had friends and were involved in weekend sports which William attended.  William became involved in the children’s school activities, sport and consideration of their welfare. 

Dennis Grant advised William in relation to the matter and advised that it was appropriate to bring an action restraining Clare from taking the children out of Sydney to Adelaide.  Dennis Grant advised that it would be more difficult to have the children returned to Sydney than it would be to restrain them at this stage.  The case was prepared by Dennis Grant with the appropriate evidence. 

  1. The Court determined the Application of relocation with the issue of residence, namely, where the children would live and time that the children would spend with each of William and Clare. 
  2. One of the issues that arose was whether Clare would move to Adelaide without the children if she was restrained from taking the children to Adelaide. 
  3. The primary consideration was what was in the best interest of the children. 
  4. The best interests of the children are to be evaluated taking into consideration all matters including and particularly the legitimate interest of the children to have a good relationship with each of their parents.
  5. Neither of the parents, whether the Applicant or Respondent, have the onus of proof to establish what was in the best interest of the children.
  6. The welfare and best interests of the children is paramount.  However, the Court does have some consideration of the legitimate reasons for relocation and those legitimate reasons are not totally ignored.

In William’s case the Court found that it was in the children’s best interests for them to continue to have a close relationship with their father.  This was a significant factor that was considered; and the Court held that it was not in the children’s best interests for them to relocate to Adelaide.  Accordingly Clare, the mother of the children, was prevented from taking the children to Adelaide.  In this particular case Clare then chose to stay in Sydney and the original Child Custody Orders relating to the time that each of the children spend with William and Clare remained and continued on foot.

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