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Watson & Watson Lawyers act for parents in relation to Applications for Parenting Orders. In a recent case, Watson & Watson acted for a mother who wished to relocate with the child from NSW to another State. The father of the child opposed the relocation and said that if the child lived in another State, the child would not be able to spend time with him. The Family Court of Australia had already made parenting Orders.
Background to the Case
Watson & Watson had acted for the mother in earlier proceeding commenced by the father in the Family Court of Australia. In his application the father sought Orders providing for the child to spend time with him. The time sought by the father in his Orders was for weekly time and time in school holidays. The father said that this time should not be supervised time. The mother for whom Watson & Watson acted proposed that any time spent by the child be supervised and that the Family Court of Australia should impose conditions to regulate the father’s behaviour before the commencement of time spent with the child and during the time the child spent with the father. In the initial period the mother said that time with the father should be supervised.
The mother and father had been separated a year before the father commenced his case in the Family Court of Australia. The mother and father had put in place an informal arrangement in relation to what time the child would spend with the father. During the operation of the informal arrangement, issues arose in relation to the father’s capacity to properly care for the child. These issues included his behaviour towards the mother and his consumption of alcohol.
The mother re-partnered and the operation of the informal contact arrangements became more difficult. The Court appointed an Independent Children’s Lawyer to represent the child in the case. The father’s behaviour became more erratic and Expert Reports were obtained in relation to the father’s capacity to parent.
Application to the Family Court of Australia and Orders made by the Family Court - the competing positions
Watson & Watson advised that this was a case where an Application for Sole Parental Responsibility should be applied for and obtained.
When and in What Circumstances will a Court Grant Sole Parental Responsibility?
One of the underlying principles of the Family Law Act 1975 is that children should have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent and consistent with the best interest of the child. This will generally result in both parents having equal shared parental responsibility for the care, welfare and development of a child.
The Court can make Orders granting sole parental responsibility for the care, welfare and development to one of the parents. The existence of parental conflict and violence between the parents may result in a Court making a sole parent responsibility order. In this case and on the evidence assembled, the Family Court of Australia made an Order for our client, the mother to have sole parental responsibility.
The mother who had the benefit of an Order for sole parental responsibility for the child had re-partnered. The mother had originally been from another State and her new partner lived and operated a business in that State.
An application to the Family Court of Australia for orders allowing the mother to relocate was prepared by Watson & Watson and the matter proceeded to hearing before a Judge of the Family Court of Australia.
When will the Court Order a Relocation?
The Family Court of Australia made Orders permitting the mother to relocate with the child to another State of Australia.
In reaching this decision and relying on the basis of the proficiently prepared Affidavit material, the Family Court of Australia took into account the principles in relation to relocation. These principles 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.
2. Compelling reasons for the relocation need to be established. If you oppose the relocation any compelling reasons against the relocation need to be established.
3. The best interests of the child 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 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’s welfare and rights.
6. If a parent seeks to change arrangements affecting the residence of, or contact with the child, 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.
The Court made the Order permitting the mother to relocate with the child to another State of Australia on the Affidavit evidence prepared by Watson & Watson to support the Orders sought, and to address the criteria that the Court would consider in making its decision.
The mother relocated with the child and the case was concluded successfully.
If you have current contact orders or informal contact arrangements in place in relation to child/children contact with their father and are proposing to relocate to another State in Australia and are unsure of your rights and whether you can or cannot, our experienced Senior Family Lawyers who can assist you with this process. Please contact Richard Watson Senior Family Lawyer or his Personal Assistant Shereen Da Gloria to discuss your matter and seek timely 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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