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Grounds For Not Returning Child to Home Country

Grounds For Not Returning Children to Home Country

State Central Authority & Papastavrou [2008] FamCA 1120

If there exists clear evidence of grave risk of harm to the child should the child be returned to its home country, the court may prevent the child from being returned.  This is a high standard to meet, and will only apply in exceptional circumstances.

In the Papastavrou case, there was an Australian mother and a Greek father who had two children, both born in Greece. The mother, who was experiencing emotional and medical problems, was instructed by her doctor that she should return to Australia because she required the physical and emotional support of her family.

During the proceedings regarding whether the children should be returned to their home state of Greece, the mother put on compelling evidence of family violence. The evidence showed that the father repeatedly abused her, occasionally in front of the children, and had abused one of the children as well. After hearing the evidence the judge decided to reject the father’s application seeking to have the children returned to Greece.

The evidence allowed the judge to conclude that the father’s history of violence constituted a future risk of harm to the children. The mother convinced the judge that the Greek authorities would do little or nothing to protect her and the children, as they had failed to take action when she had called them in the past. The mother also provided the court with expert testimony discussing inherent issues with laws enforcing domestic violence in Greece. Additionally, the mother had developed a medical condition making her more vulnerable to future violent attacks, and this also compounded the impact future violence may have on the children.

In this case the judge was able to ultimately conclude that there was in fact a serious risk of harm to the mother and children if they were to be returned to Greece, and denied the father’s request for such.

Evidence Required

Evidence Required 

Goode & Goode [2006] FLC ¶93-286

This is a case illustrating the importance of having evidence if alleging that acts of family violence have occurred.

A husband and wife separated after ten years of marriage in 2006. The children, ages 2 and 8 lived with their mother and spent time with their father alternating weekends. The father argued that the mother was preventing the children from spending additional time with him, while the mother argued that the parties had agreed to this arrangement. The mother sought an order finalising this alleged arrangement, while the father sought an order for an equal share care arrangement.

The mother alleged that the father had engaged in family violence during their relationship.  Normally, in custody disputes, the judge must apply a rebuttable presumption that it is best for parents to have equal shared parental responsibility. However, a major exception to this presumption is where family violence has occurred.

In this case, the judge was unable to conclude that the allegations of family violence were true. Because there was a dispute as to whether the violence occurred, the judge was conflicted as to whether the aforementioned presumption should apply.  The trial judge ultimately concluded that the allegations alone did not satisfy that violence had occurred. The mother lacked sufficient evidence to prove any acts of violence, and her words alone were not enough for the judge to be satisfied on reasonable grounds that violence had occurred.

The issue of alleged violence failed to make a major impact on the outcome of the case; the court concluded that the presumption should not apply in cases where there is even a dispute regarding whether family violence occurred. However, this case still illustrates the principal that when alleging family violence, you must be prepared to show evidence that allows the judge to make a finding that family violence did in fact occur.

The trial court issued an order allowing the children to live with the mother, but spend time with the father on alternating weekends, as well as Monday and Tuesday evenings, and on school holidays. Had there truly been a history of family violence, it would not be safe or appropriate for the children to spend that much time unsupervised with their father.

Therefore, if there is a history of family violence in your situation, be prepared to put on evidence that allows the judge to agree with your allegation.

Child Relocation from Sydney to Newcastle

Wilson & Wilson – [2013] FamCAFC 43

This is an appeal on parenting orders granted by the Federal Magistrate Court.  The father appealed orders by the court granting the mother permission to relocate their child from Sydney to Newcastle.  The appeal was accepted and remanded for a rehearing.

The father, aged 57 and the mother, aged 52, had one child together, born in 2001.  The parents bought a home together in Sydney in 2004 and separated in the summer of 2007.  At that time, the mother worked from home as a bookkeeper and the father worked as a contractor for a consultancy company.

Initially, the parents were able to work out parenting arrangements.  From the time they separated, the child lived with the mother and spent time with the father from Friday afternoon until Sunday morning.  When, however, the mother asked the father’s permission to relocate with the child to Newcastle, some 118 kilometers from Sydney, the father refused.  The mother turned to the court for parenting orders and permission to relocate and the father sought orders restricting the mother to the Sydney area.

The mother had several reasons for relocating.  The parents agreed to sell the family home and the mother believed she would not be able to find affordable housing in Sydney.  She also wanted to reduce her work hours in order to spend more time with the child.  Her final reason for requesting relocation was to be closer to good friends in Newcastle since she was isolated in Sydney.  She asked for shared responsibility, that the child live with her and spend every second weekend (Friday afternoon through Sunday) and half the school holidays with the father.  The father asked the court to give them share parental responsibility, that the child live with the mother within a 15 km radius of Sydney and that he have the child three out of four weekends a month for three nights.

The child in question was 11 years old at the time of the divorce, suffered from ADHD which manifested itself in difficulties in school work and making friends.  The child was close to both parents, but had a stronger relationship with his mother.  An expert witness during the initial trial in the Federal Magistrate court stated that the move to Newcastle could potentially harm the child since change was difficult for him.  The expert also said the move would impact negatively on his relationship with his father since the drive to Sydney would be tiring and the child might want to stop making the visits.  Additionally, he would be seeing his father less frequently.

While the Federal Magistrate noted these claims, she considered the mother’s reasons in the equation as well.  She held that in order to provide the child with close to the same standard of living, the mother would, at the very least, need to move to the outskirts of Sydney, further from the father, or she would have to downsize to a small apartment to stay close by.  She would also be required to work her current hours, or longer, in a place where she felt isolated.  The father, on the other hand, was not required to make any changes.  The Federal Magistrate felt that placing the mother in this situation, when she is the primary caregiver for a child with special needs, might result in the child “not receiving the level of parenting he has hitherto enjoyed from his mother”.  The Federal Magistrate ruled in favor of the mother and allowed her to move to Newcastle.

Lower Court did not Weigh Evidence Correctly

The Family Court accepted the father’s claims on appeal, taking into consideration the testimony of the expert witness.  Overall, the court found that the lower court had not given appropriate weight and consideration to the expert witness, who expressed her concerns that the move itself could be damaging to the child.  In particular, the Family Court ruled that the Federal Magistrate was mistaken when she found: (1) the child’s relationship with the father would not be negatively affected by a change in the quantity or nature of the time they spent together; (2) that a move to Newcastle would not negatively impact on the quality of time the father and child spend together; (3) the child was okay with change he was prepared for and; (4) that the best interests of the child were met by the mother having an “unencumbered property with a backyard”.  The court found that the lower court did not appropriately weigh the evidence in considering the best interests of the child.  The case was sent back to the lower court.

Parent who Moves the Children Must Carry Financial Burden

Lorreck & Watts – [2012] FMCAfam 977

This appeal was brought before the Family Court in Canberra and raised the question of which parent has to pay for the travel costs for children’s visits to the other parent.

Ms. Lorreck, the mother, and Mr. Watts, the father, had two children.  In June 2012, the court gave orders allowing the mother and the two children to relocate to Cairns from Canberra.  The father remained in Canberra.  The order also included seven trips from Cairns to Canberra in a two year period.  The decision regarding the costs of travel to and from Canberra was remitted to the Federal Magistrates court.

Both the mother and the father submitted their travel expense requests to the Federal Magistrate.  The mother asked that she be required to pay for only one trip per year for the children to visit their father until she could earn $1,300 per week, at which time she would pay for every second trip.  The father asked that the mother pay for every two out of three trips.

The Federal Magistrate ruled that the parents should share the burden of travel expenses equally.  He noted both the mother’s proposal to pay for every second set of airfares and also noted that she had earlier offered to pay half of all of the flights.  The Federal Magistrate recognized that the mother would need time to readjust to her new circumstances before imposing a financial burden on her, but concluded that this did not give her permission to forego her responsibility for the children.

The mother appealed the decision arguing that the Federal Magistrate did not provide adequate reasons for his decision, did not rely on the financial evidence she submitted to the court and disregarded the best interests of the children.  The mother’s income was based solely on child support and social security and after deducting her expenses she was left with $26 per week of disposable income, or $1,352 per year.   The Family Court agreed that the Federal Magistrate did not explain why he rejected the mother’s proposal.   While the Family Court assumed that the Federal Magistrate did this on the basis of the mother’s original offer to pay for half of the travel costs, the Federal Magistrate did not explain his reasons for giving the order on travel expenses.  Therefore, the Family Court found that the appeal should be allowed “on the basis of the challenge to the adequacy of his reasons.”

The Family Court, however, rejected the mother’s claim that the Federal Magistrate’s decision did not take the children’s best interests into consideration.   The mother referred to section 60CC of the Family Law Act, 1975, a list of factors a court uses to determine what the best interests of the children are when granting parenting orders.  While the mother specifically referred to section 60CC(3)(e) of the Act, which allows the court to consider the practical difficulty and expense of a child spending time with the other parent, she did not raise this issue in the context of her financial burden.   The Family Court did not view it as a valid claim on appeal.

Mother to Pay Three of the Seven Trips

The Family Court ruled that the mother must pay for three out of seven trips over a two year period.  This was the mother’s alternative suggestion if the court chose not to accept her proposal that she begin paying only once she started to earn $1,300 a week.

The Family Court gave several reasons for this decision.  The judge held that the question of best interests as laid out in section 60CC of the Act does not apply to issues of travel costs.  Instead, the court found that it was the mother’s decision to move the children in the first place and therefore “must bear a significant responsibility or obligation to ensure that they are able to spend time with their father”.  In addition, while the father’s income was higher, he was not in a position to pay most of the travel expenses, particularly since he was already paying child support.  The court also found that just as the financial burden on the mother could impact negatively on the children, the mother’s failure to contribute to the travel costs might increase the father’s anger and bitterness and therefore impact negatively on the children as well.  Finally, the court argued that waiting until the mother reached a certain income level was unrealistic because she might never reach that level and because “income levels can be contrived”.   Instead, the court made the mother responsible for three out of seven trips, beginning from a specific date, January 1, 2014.