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Relocation Issues

A case about to come before the court and mother has taken the children to WA

The Following is are parts of posts made on another forum.

Not particularly the advice given by the solicitor!

I'm considering applying for recovery orders for my two children who were unilaterally removed from WA to an eastern state by their mother 8 weeks ago, our case comes up in less than a fortnight.

Unfortunately, things did not go too well on Friday. Prior to the case conference, my solicitor said I would not have a snowballs chance in hell of the Magistrate ordering the children be returned to Perth because any orders theFM makes must ensure the children are "no worse off" than the present situation - A return to Perth order had the potential for mum not to return, leaving the children in a day are / nanny arrangement during weekdays while I work - so this would be worse for the children than being full time with mum while I am 3000km away

I went in there intent on proposing the best interests of the kids will be served if:
(a) mum, dad & kids live in same town / city / locality, and
(b) once criteria (a) is satisfied, if we can then arrange for all of us to relocate to NSW where the exteded families both live but ONLY when I am able to find satisfactory employment, with a 12 month time frame

I then asked mum to return to WA with the children for a period of up to 12 months, and even offered to vacate the family home and pay all of the bills, just so I could see my kids more often - she refused.

In mediation the supposed counsellor said to me it is unfair for me to expect mum to return with the kids for more than 6 months, and I am employable and should easily be able to find a job in that time in NSW.

I adjusted my request to 6 months and she still refused, despite my eminantly sensible request and generous financial offer.

I was then left in the situation where my advice was I had little or no chance with the FM, and would be inciting more conflict (according the the court counsellor) if I pursued it, and of course "neither of us want someone else to make decisions about our children do we. . . "

This has left me with the situation where I have to travel from perth to NSW every 4 weeks to see my kids (can't manage any higher frequency). I wish i'd read your email before court last friday. . . .

Sitting here this morning thinking I should take the 3 days notice in writing of our interim agreement and go back before the FM to test the waters. . . .

In some sense I think it is better to move on and just get my ass back to NSW to see the kids asap, and use property as a bargaining chip to pursuade the X on improved contact arrangements…

So now the X can proudly tell my kids when they are old enough that she took them away from me (without discussion) at the tender ages of 22m and 8m, put a whole lot of barriers in between the relationship for 8 weeks, then when given the option of living close to me at no cost so the children could have the contact with me that they truely need, she refused. I'm sure she'll never tell it to them this way, and I expect I'll end up alienated by her along the way.

Not sure what to do now. stewing here a bit over the whole thing really.

So are there any comments?

Did Dad get shafted by his own soliciotor?

Did Dad get shafted by court counsellor? (Probably Legal Aid Court conferencing), Very unlikely to be the Court Counselling service as they now farm out all mediation as I understand it.

What do peope think the real odds of mum being ordered back to WA if the Magistrate had been asked the question properly?

It is very significantly harder to move away. There are key sections of the new law that now require the parent who has the children to facilitate a close relationship with the other. A number of judgements have talked about this and have excluded moves on that basis. It is MUCH harder to move if at all these days. Sorry this is in much haste and I have not quoted the specific sections of legislation. If you need those let me know. :dry:

Executive Secretary - Shared Parenting Council of Australia
 Was my post helpful? If so, please let others know about the FamilyLawWebGuide whenever you see the opportunity
You need to carefully consider the following described in James & Mae 2007 FaMCA_99

Prior to the 2006 amendments to the Act, the best interests of the child were determined under s 68F(2). From 1 July 2006, those interests are now determined under a 2-tiered approach pursuant to s 60CC, which lists 'primary
considerations' and 'additional considerations'. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act.
ix) 9 s 64B(2) Family Law Act 1975 (Cth) sets out the meaning of a parenting order and related terms.

FamCA Reasons Page 8
15. The primary considerations are contained in s 60CC(2) as follows; Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Secretary_SPCA said
Note this is now raised above the other provisions to a higher level as it is PRIMARY notwithstanding that it does not say secondaty on the others it says "additional" instead

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B (1)(a) and (b).
16. The additional considerations are set out in s 60CC(3) as follows;
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
© the willingness and ability of each of the child's parents to facilitate,
and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will
substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child); FamCA Reasons Page 9
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture
and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child10:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) any family violence order that applies to the child or a member of the child's family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

Secretary_SPCA said
I suggest you also review case on relocation. There are a couple of new ones which are interesting and have a lot of thought gone into them.. Take a look at M & S 2007 FamCA 1408 attached. These should give you some direction.

M & S 2007 FamCA 1408  - Relocation

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