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Relocation - No onus of proof on the relocating parent

Godfrey & Sanders [2007] FamCA 102 (23 February 2007) Is the children's ability to have a meaningful relationship with their father being waterd down here?

The legislative changes wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 do not cast an onus of proof on the relocating parent. This appeal overturned a Federal Magistrates decision that it did.

The Federal Magistrate (Correctly in my view) considered that the children's ability to have a meaningful relationship with their father would be at risk if they spent less time with him as per the new legsilation intent brought by the Family Law Amendment (Shared Parental Responsibility) Act 2006. The explanatory memorandum is clear on how to interpret this section. Nothing it seems is ever black and white and our legislators must yet again be shaking their heads.

GODFREY & SANDERS   [2007] FamCA 102

APPEAL - CHILDREN - Relocation - Appeal against orders of Federal Magistrate which prevented the mother relocating with the children from country Victoria to Brisbane - Father spent time with children every third weekend and periods of holidays, with no desire for an increase - Mother proposed to set aside proceeds of sale of her new husband's home as a travel fund so that children could spend time with the father almost as frequently as before the move - Federal Magistrate considered the mother unlikely to keep her pledge and that it would not be in the children's best interests in any case when neither party had any other assets or income of significance - Federal Magistrate considered that the children's ability to have a meaningful relationship with their father would be at risk if they spent less time with him.

HELD - the legislative changes wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 do not cast an onus of proof on the relocating parent and the child's best interests remain the paramount consideration - The evidence in this case indicated that the children would retain a meaningful relationship with their father if relocation were permitted provided some monies were set aside to secure regular travel - Federal Magistrate failed to adequately explore the possibilities of different arrangements for the children to spend time with their father as described in A and A: Relocation approach (2000) FLC 93-035 - Children to travel to Victoria four times a year and the father come to Brisbane twice a year if he so desires - Appeal allowed - Discretion re-exercised.

Attachment
GODFREY & SANDERS [2007] FamCA 102


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