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Making Sure your Children’s Best Interests are Protected – Making Sure each Child has a Relationship with each Parent – Our Recent Cases

30/03/2021

In two recent cases Watson & Watson Lawyers have resolved parenting disputes on behalf of the father of the children.  One case was heard in the Family Court of Australia and the other was settled after a Mediation.  In each case, unfair parenting arrangements (that were not in the best interests of the children) were overcome and proper parenting Orders were made and approved by the Family Court of Australia.  In each case, the children were being prevented from seeing, communicating and spending time with one of their parents. 

In each case the child or children lived with the mother but had spent significant time with the father.  Unilateral actions by the mother(s) had resulted in the time the child or children spent with their father, being reduced or amalgamated.  In each case there was no valid reason for the mother(s) changing the parenting arrangements.  The changes imposed were not in the children’s best interest. 

The Family Law Act provides that a child has a right to a relationship with each of his or her parents and it is not for one parent to determine that there should not be a relationship with the other parent. 

What is the Law - The Best Interests of the Child are Paramount?

The Family Law Act (Cth) 1975 provides that in parenting cases the child/children’s best interests are paramount.  The primary considerations are the benefits of a child having a meaningful relationship with each of the child’s parents and the need to protect the child from physical or psychological harm. 

In each case, the factual matrix was that the father was not having a meaningful relationship with their children and were being prevented by parenting decisions made by the mother on a unilateral basis.

The decisions made by one parent prevented time being spent with the other parent came at a time after separation.  After separation, the children’s father had spent significant time with the children and had the basis and opportunity to establish and continue a meaningful relationship with their child/children.

Case 1 - Overseas Relocation – Facts

In this case, both parents were born overseas and each had come to Australia independently.  Both parents completed their tertiary education and established careers in Australia.  Both were professionals.  There was one child of the marriage who prior to separation, lived with both of her parents. 

Separation occurred in Australia and the mother and father lived in the same area but in separate accommodation.  After separation the mother and father established a parenting arrangement.  The child lived with the mother but spent significant time on weekends, during the week and during school holidays with her father. 

After some years of successful operation of the parenting arrangements, the father relocated to his country of birth.  Prior to this relocation, it had been agreed that the father would travel between Australia and his birth country regularly and would be able to spend time with the child when he was in Australia and for an extended period of time. 

After agreeing to the changed parenting arrangements, the mother denied the father time with the child in Australia when the father returned to Australia.  The mother would not allow the child to see her father for any time. 

The father participated in Primary Dispute Resolution (Mediation) with the mother.  Mediation did not resolve the matter.  The mother attempted to link the parenting case to the resolution of existing property proceedings between the father and the mother.  The father retained Watson & Watson and made a Parenting Application to the Family Court of Australia. 

The interests of the child are paramount and it is inappropriate and improper to leverage property or maintenance rights for time with the children. The Family Court of Australia will not allow such action by one parent or another.

The Competing Positions

Mothers Case

The mother said that the father could spend time with the child but this should be only on the giving of 3 months notice and for a period of 3 hours and on a supervised basis.  This was not appropriate in that it was not significant time and given that the father had to travel to Australia from another country, was not practical.

Fathers Case: 

The father’s case was that he should spend time with the child when he was in Australia and that this time should be unsupervised and be for a continuing period or block time, rather than just on single days and weekends.  The father also proposed Skype contact and future overseas travel to spend time with his child overseas. 

Watson & Watson Lawyers prepared the Initiating Application and supporting Affidavit.  The mother was legally represented and prepared her Response and Affidavit.  The matter was heard in the Family Court of Australia. 

The Outcome 

The evidence prepared by Watson & Watson Lawyers and presented on behalf of the father was compelling and provided for a practical outcome whereby the child could spend time with the father when he was in Australia.  Further that time should be extended and significant and without supervision. The Orders provided for  increment in the block time the child spent with her father whereby as the child grew older, her capacity to spend unsupervised holiday time in Australia and further the child was to allowed to travel to another country to spend time with the father, without supervision. 

The mother’s case was rejected as there was no proper or admissible evidence to support the mother’s position.  The mother’s case failed.  The Court made favourable parenting Orders for the father, which are enforceable. 

Case 2 Change in Relationships; Re-partnering 

In this case Watson & Watson Lawyers acted for the father.  There were two children who were attending school.  The father had separated from the mother 4 years earlier.  There had developed parenting arrangements whereby the children spent every weekend and one night during the week with their father.  Their father collected the children from school and returned them to school the following morning.  The mother and father shared travel on the father’s weekend.  The mother had never allowed the father block time during the school holidays. 

The arrangements worked for the most part, satisfactorily until the mother re-partnered.  The arrangements in the mother’s household resulted in the mother stopping all contact by the children with their father.  The father consulted Watson & Watson Lawyers and a set of Parenting Orders were prepared by Watson & Watson and sent to the mother.  Watson & Watson arranged for Mediation before a Registered Mediator. 

The Outcome

Watson & Watson Lawyers prepared the matter for Mediation and conducted the Mediation with an independent Mediator.  Both the father and the mother were represented.  The Mediation resulted in an agreement between the parties which:

  • Returned the father to his previous position;
  • Achieved dedicated time in holidays;
  • Provided for overseas travel with their father; and
  • Settled arrangements for time on the children’s birthdays and other significant events. 

Watson & Watson Lawyers prepared the Consent Orders and Application for Consent Orders which were approved by the Family Court of Australia.  The father now has Orders from the Family Court of Australia confirming the time the children are to spend with him.  The Orders of the Court can be enforced if either the mother or father failed to comply with the Orders. 

At Watson & Watson Lawyers our experienced Family Lawyers can advise you in relation to parenting/contact matters or if you are having an issue in relation to contact arrangements with your estranged partner which you believe to be unfair.  Please contact Richard Watson Senior Family Lawyer or his Personal Assistant Shereen Da Gloria to discuss your important matter and seek our expert advice.

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

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