Order returning children. When will this be made?

An order returning children to a parent is quite often sought when the other parent moves away with children from the place where that first mentioned parent lives. There are many reasons why a parent may decide on a relocation with the children following separation, For example, there may be a history of domestic violence perpetrated by a parent on the other parent or on the children. In other cases, the parent with primary care of children may only have family living in another location.

In all parenting cases, the paramount consideration under the Family Law Act 1975 (Cth) is what is in the best interests of the child. This applies even where what is sought from the family curt is an order returning children to a parent.

If you need advice or assistance regards any parenting issues following separation, contact our experienced Brisbane child custody lawyers or North Brisbane Child Custody Lawyers. Ph.: 07 3506 3651. We are experienced in all areas of family law, including where you are seeking (or wanting to resist) an order returning children. We provide free family law advice during your first call with us. We also undertake in many cases fixed fee family law work should you wish us to act on your behalf. You are also welcome to read on for more information right now…..

The recent decision in the Federal Circuit Court of Australia in Bellini & Bellini [2018] FCCA 3581 (16 October 2018), the Court considered an application by a father who sought interim orders returning children aged 2.5 years and 10 months to Sydney. The father sought those orders whether or not the mother chose to return. Sydney was where the children had resided  before the mother unilaterally relocated with the children to Perth without the Father’s consent.

The mother alleged that the father had committed acts of domestic and family violence. The mother therefore argued that  it was not appropriate for the court to make an order returning children to the father or for the court to make orders for the return of the children to Sydney. In the latter case,the mother may feel it necessary that she return to Sydney to care for the children, leaving her exposed to family violence.

Secondly, the mother relied upon a line of previous cases which say that when considering orders to be made, the court must look at the reasonable practicalities of the matter. In this respect, the mother contended that the parties could not afford for her and the children to relocate to Sydney and for the father to live elsewhere.  Also, the mother contended that the parties could not  live as a family unit together in the one location.

Whilst with respect to family violence, the Court was concerned about a threatening statement that the father had made to the older child, the Court did not consider that that statement by itself justified a conclusion that the father  is an unacceptable risk to the children.

However, the Court did not accept that the father’s proposal that the children live with him with the mother residing in the same residence or elsewhere was reasonably practicable. Neither party nor together could afford separate accommodation. The Court said it was inconceivable that the parties could live in the same location given the allegations of family violence that had been made.

At the same time, the father’s work commitments meant that if the mother was not to care for the children in Sydney, then they would be cared for by the paternal grandparents for much of the time.  The youngest of the children was still being breastfed. Therefore, the presiding judge concluded that making an order returning the children to Sydney would require that the child was instantly weaned for him then to spend most of his time with his paternal grandparents. This was not considered practical or in the bests interests of the child.

The presiding judge said that his usual course and preference would be not to allow children to continue living in another location where a parent had taken them there without the consent of the other parent,  if the children could be safely and practically returned to their normal place of residence. The Judge said that this was particularly so if school-aged children were involved and they were missing out on school.

However, the Judge said that the  father’s proposals, are not practicable and so not in the children’s best interests. In the event, no orders returning children to the father were made.

Contact  or call (ph.: 07 3506 3651) our experienced and friendly Brisbane child custody lawyers or North Brisbane child custody lawyers if you require assistance regards orders returning children or in relation to any other family law issues

The information provided in this blog is not a substitute for legal advice.  recommend that you obtain family law advice tailored to your circumstances.