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.

Yamada & Cain – [2013] FamCAFC 64

This is a case involving the “best interests of the child”.  The mother appealed orders placing the child in the care of the paternal great aunt.

The child, Z, was born in July 2005 and lived with her paternal great aunt (“the aunt”) from the time she was a baby until she visited her parents in January 2010.  The parents did not return the child after this visit, although it was supposed to last only four weeks.  Both the mother and the father of Z – who have four older children ranging in age from seven to eleven at the time of the trial – had criminal records involving the cultivation and possession of marijuana.  They lived a transient lifestyle, moving around a good deal, and switching schools for their other children.  The most recent move took place in 2010, following the father’s arrest and the family’s desire to be closer to him.  The aunt lived in Melbourne.

After Z was not returned, orders were made by consent in July 2010, according to which Z would live with her parents and spend specified school holidays with the aunt.   In January 2011, the aunt brought Z to the airport to return her to her mother.  There she observed the mother being arrested by Australian Federal Police.  The aunt did not transfer Z and Z continued to live with her.   A trial ensued and the Federal Magistrate ordered that Z live with the aunt and visit the parents during school vacations and maintain phone and electronic contact.   The mother appealed.

Is Parenthood an Overriding Factor?

The mother’s primary claim on appeal was that the Federal Magistrate did not properly balance the importance of parenthood when making a determination of whether a child should live with the parents or a non-parent.   The Family Law Act, 1975 requires the court to consider the child’s best interests when making a parenting order.  The first primary consideration listed in the Act “is the benefit to the child of having a meaningful relationship with both of the child’s parents.”   The mother argued, based on Donnell & Dovey (2010) FLC 93-428 at [121] that since this relates only to parents, the legal intent was to give parents primacy when considering the best interests of the child.  The mother concluded from this that the Federal Magistrate should have considered Z’s relationship with her parent’s the primary factor and her relationship with her aunt on a lesser level.

The Family Court disagreed, also basing its position on Donnell.  There the court held that in a particular case, maintaining a relationship with a non-parent may be “equally important or more important than the maintenance” of the relationship with the parent.  Further, just because the relationship with the non-parent cannot be a “primary consideration” does not mean that “it will be of any less significance than the benefit to the child of the maintenance of a meaningful relationship with a parent.”  Finally, section 60CC(2)(m) of the Act allows the court to take into consideration ” any other fact or circumstance that the court thinks is relevant.”

Ultimately, the Family Court held that the law “recognizes that it is not parenthood which is crucial to the best interests of the child, but parenting – and the quality of that parenting and the circumstances in which it is given or offered by those who contend for parenting orders.”  The Family Court found that the Federal Magistrate had indeed carefully weighed all of these factors to determine what was in Z’s best interest.  The Federal Magistrate weighed the importance of Z’s relationship with her parents and older siblings against the danger of a transient lifestyle and the instability inherent in such a way of life.

The mother’s appeal was rejected.

Hi, I’m Vanessa Mathews from Mathews Family Law & Mediation Specialists. Today’s topic is children and parental responsibility. I’m going to provide you with some of the basic information you should have before you begin discussing child custody with your spouse or partner.

I also suggest you read the information provided on our website at mathewsfamilylaw.com.au and I highly recommend that you speak with a lawyer before signing anything or filing any court documents.

Often I find that people forget the most important part of their parenting dispute, which is of course, their children. Unless one parent is a physical or emotional danger to the children, most children are better off in the long run maintaining a close and meaningful relationship with both parents. The less fighting between you, the better it is for your children.

Before you begin discussing the children with your partner or spouse, there are a few important terms to remember. First, there’s equal shared parental responsibility. Australian law changed a few years ago and today, parents are generally given equal shared parental responsibility for their children. This doesn’t necessarily mean that the children live in both homes equally, but rather that both parents have the same rights in making major decisions for the children.

The other important term is custody which means who the children live with. There is primary custody where the children live more with one parent than the other, then there’s shared care, where the parents have more shared time with the children. You and your partner can also come up with your own parenting agreement, which is an arrangement for taking care of your children.

A good parenting agreement should be as detailed as possible. It should include where the children will be on each days of the week and during the school holidays, how major decisions for the children will be made, such as the religion they have to be raised in and the schools they will attend. The agreement should also look towards the future. For example, by anticipating the changes from primarily to secondary school, extra- curricular activities and healthy expenses such as orthodontics.

A good parenting agreement will also have a way for resolving disputes. So, when there is a disagreement, there is a clear way to solve the problem. For example, some couples require that they first sit down and talk to each other to come to a compromise. Others might decide that it’s best to turn to a mediator or family dispute resolution practitioner.

You can submit this agreement to the court for approval, which makes it binding on both sides this is called a consent parenting order or you can opt for a parenting plan, which is not binding on either of you. If you can not agree between yourselves, you can bring the dispute to the court and a judge will decide for you.

We believe it’s always better for parents, and not the judge, to decide about children as it is you who knows what’s best for them. The co-parenting calendar on the Mathews Family Law & Mediation Specialists website will help you and your spouse or partner to plan your children’s living arrangements. I’m Vanessa Mathews at Mathews Family Law & Mediation Specialists.

It may be possible to negotiate a settlement with the applicant by writing a letter or attending family dispute resolution.

Where there is family violence or risk of harm to the child negotiation is not advisable.

When making any Court Orders or varying a Child Support Agreement, the court must always consider the best interests of the child.

Factors which determine whether or not arrangements are in the best interests of the child include:

• the benefit of the child in having a relationship with both parents,
• the need to protect the child from harm,
• ensuring children receive adequate and proper parenting to reach their full potential and
• ensuring that parents fulfill their duties and perform their responsibilities towards their children.

The principles underlying these objectives are that:

• children have the right to know and be cared for by both parents,
• children have a right to spend time on a regular basis with both parents,
• parents jointly share duties and responsibilities for their children and
• parents should agree about the future parenting of their children and
• children have a right to enjoy their culture.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have significant experience and expertise with regard to issues that affect children. Our primary goal is to minimise risk to children and ensure proper arrangements are made for their ongoing financial, physical and emotional support. Care and compassion combined with determination and expertise are required to obtain the best results.

Mathews Family Law is an Australian law firm. Please contact us on 1300 635 529 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

If there is a concern about a child potentially being wrongfully removed from Australia, it is necessary to file an Application and then present the Order authorizing a PACE Alert to the Federal Police. This Alert prevents the departure of the child from Australia with the child’s details be placed on an Airport Watch list.

If a child has been wrongfully removed from Australia, the return process depends on which country the child has been taken to.

If the child has been taken to a country that is a signatory to the Hague Convention, an Application may be made for the child’s return usually through the State or Commonwealth Attorney General Central Authority.

If the child has been taken to a country that not a party to the Hague Convention it may still be possible to have the child returned to Australia, but in most cases a lawyer in the overseas country will be required to start proceedings in that country to have the child returned.

It might be prudent to prevent the issue of an Australian or foreign passport for the child. This can be achieved by contacting the Australian Passport Office or the relevant embassy.

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have significant experience and expertise with regard to issues that affect children. If you are concerned about your children being removed within Australia or overseas, then you should contact us urgently. If you are considering moving your child interstate or overseas then contact us for advice about the possible consequences of such a move.

Mathews Family Law is an Australian law firm. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

[Case: Emily avoids being returned to the USA]

If a child has been wrongfully removed within Australia, application can be made to the Court for a Recovery Order. A Recovery Order authorizes officers of the Court, the Federal Police and the State Police to stop and search vehicles, vessels, aircraft, premises or places where the child may be found. When found, the child is returned to the party who has made the Application.

Case: Claudia returned after her mother abducted her to WA

Claudia returned after her mother abducted her to WA

Peter and Claudia were a fantastic father and daughter team, they spent many hours discussing their favorite sports. Peter was deeply involved with Claudia’s home schooling. He lived with Claudia and her mother. One night, though, Peter returned home from shopping to discover both Claudia and her mother were gone. An urgent application was made to the Family Court of Australia and the Australian Federal Police found Claudia safe in West Australia and a few days later she was home safe and sound with her dad. Peter and Claudia continue to spend many happy hours together today.

Carol and her school-aged daughter Emily moved to Australia from the United States. Emily settled into school and Carol started in a new job which was a major promotion and pay rise. Meanwhile, unbeknown to Carol, Emily’s father sought and was granted custody of Emily through a Court in the USA. The Court ordered Emily to return to live in the USA. To her surprise, Carol was also told that if she accompanied Emily to the USA it was highly likely she would be arrested and imprisoned. Emily was very upset and confided in her teacher that she was very happy in Australia and wanted to stay with her mother. A timely application to the Australian Family Court enabled Emily to stay with her mother in Australia.

[Case: Emily avoids being returned to the USA]

If the other parent breaches an order affecting your children, you can:

• use mediation to resolve the problem or
• apply to the Court that the other party has contravened the parenting order.

The Court takes breaches of its orders very seriously. The breaching parent can:

• be referred to a parenting program;
• fined; or
• made to provide “catch up” time.

The breaching parent may show a reasonable excuse. For example, a very sick child may be considered a legitimate reason.

If the orders breached are no longer workable, the Court may order that both parents attend a parenting program, or adjourn the case to consider varying the orders.

Grandparents (or with an ongoing relationship with the children) can apply for an order to spend time with them.

As long as it is in their best interest, children have a right to spend time with significant people in their lives.

Grandparents must show that an order to spend time with the children is in the best interests of the children. They also may need to attend family dispute resolution before they can apply to the Court.

A court can make orders about:

• which parent a child lives with;
• how much time a child spends with the other parent;
• how a child communicates with a parent;
• parental responsibility.