Affordable child custody lawyers and relocation of your child overseas or interstate

Are you separated and needing affordable child custody lawyers to assist you to implement binding child custody arrangements?

If your former partner is a foreign national, you may be worried about your former partner  relocating your child overseas. In that situation, you will want to have child custody orders or parenting orders in place. It is important for you as well as for your child that there is certainty regarding child custody arrangements for your child.   

Travel for the child with the mother alone to Japan permitted

In the recent decision of the Full Court of the Family Court of Australia in Ardagh & Ardagh (No. 2) [2018] FamCAFC 160, the Full Court upheld the decision of Her Honour Judge Cassidy in the Federal Circuit Court of Australia allowing the mother’s application for the child  to be removed from the watch list (which had stopped the child from leaving Australia) and allowing travel with the child to Japan.

The mother was from Japan but a permanent resident of Australia. She sought to be allowed to take the child to Japan to visit his maternal family who lived there. The Full Court considered it significant that the child had visited Japan on three previous occasions. On two of those occasions, both parents had travelled with the child to Japan and on a visit in May 2016, the mother alone had taken the child to Japan and returned.

The father said that he was “terrified” that the mother would not return to Australia  with the child if she was permitted to go there again with him.

The Full Court noted that Japan has been a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) since 2014. The Hague Convention provides for signatory countries to facilitate the return of children wrongfully removed from other signatory countries.

The Full Court further noted that each party to the Hague Convention is bound to perform the obligations imposed on it in good faith (Art 26, Vienna Convention on the Law of Treaties).

The primary judge had observed that Japan is a Hague Convention country in response to the father’s submission that Japan would not honour its obligations. On appeal, the father sought to support his claim that Japan would not honour its obligations by seeking to rely on part of the annual report prepared in April 2018 by the United States of America Department of State on the operation of the Hague Convention. That report had included a part that addressed “Countries Demonstrating a Pattern of Non-Compliance” and one of the countries identified was Japan.

The Full Court declined to admit that report as evidence and said that it would not admit it even had it been properly proved so as to be admitted. The Court observed that the report addresses issues as between Japan and the United States of America and that it was not relevant regarding Japan’s compliance with its obligations in respect of any other country. The Court said that neither did the report “address whether there was some systemic or perhaps principled reason why enforcement of orders for return to the United States of America were difficult. It has no forensic value at all in a determination of the question of whether the child would be returned if the mother took him to Country W and refused to return him”.

The Full Court said that giving any credence to the fear that the father asserted  whether supported by the Department of State report or at all would be an affront to Japan as a signatory to the Hague Convention.

Contact LGM Family Law for assistance from our experienced family lawyers Brisbane and family lawyers Northside if you require affordable child custody lawyers for arrangements that control any overseas travel for your child with your former partner.

If you are concerned about your child being relocated by your former partner, read on

Relocation of the child to Far North Queensland

The Full Court in Ardagh & Ardagh (No. 2) [2018] FamCAFC 160 confirmed the decision of the primary judge permitting the mother to relocate the child’s residence to Far North Queensland.

The parties had commenced living together in October 2011 and married in October 2013. The child was born in October 2014 and the parties separated in October 2016. For most of their relationship, the parties lived in Far North Queensland and they moved to live in Central Queensland in July 2016. However, the primary judge had found that the mother felt that she did not have a choice but to move and that the father misused his power in the relationship to pressure the mother to move to Central Queensland. The parties had separated shortly after making that move and the father had refused to return the child to the mother after spending time with him, keeping the child for some two months. Orders had later been made for the child to spend time with each parent on a week about basis and this was the living arrangement for the child when the matter was heard by the primary judge.

The primary judge found in effect that the presumption of equal shared parental responsibility applied but she concluded that equal time was not in the child’s best interests. Her Honour referred to the view of the family report writer that an equal time arrangement was not the best for a child as young as the parties’ child.

Importantly, the primary judge found that the parties were unable to communicate effectively about the child’s day to day circumstances. It was this lack of capacity to communicate that caused the primary judge to conclude that equal time was not in the child’s best interests. If the mother was permitted to move to Far North Queensland, equal time would not anyway be reasonably practicable.

The primary judge found that it was in the child’s best interests to live with the mother in Far North Queensland. This would allow her to be amongst friends and in a Japanese community where she would also have work opportunities. The primary judge also took into account that the mother was best able to assist the child in learning about his Japanese heritage and for that reason it was in the child’s best interests to live with the mother.

Contact LGM Family Law for assistance from our experienced family lawyers Brisbane and family lawyers Northside if you require affordable child custody lawyers to address concerns about your former partner relocating your child away from where you live.  We have the experience to assist you to obtain the best possible outcome.