Winning International Child Custody Cases

At Melbourne Family Lawyers, we like to win the Court Cases which cannot be settled out of Court!  This year we have had great success in running (and winning) two cases in the Federal Circuit Court involving young mothers wanting to return to their overseas country of origin with their young children.  These cases needed to be decided by a Judge as the children’s parents could not come to an agreement as to with whom, or where, the child should live.  We cannot go into the specific detail of these cases as there is a ban on publishing such detail.   If the parents had agreed, then it would have been a relatively straightforward procedure to ask the Family Law Courts to make Orders by Consent covering the relocation to an overseas country and arrangements for the other parent to spend agreed time with the child.

If the other parent does not agree to a child living overseas, then a Court Order should be obtained in order to decide whether the child should be allowed to live outside of Australia.  You need to issue a Court Application to invoke the Court’s Jurisdiction and you must convince the Court that it is in the child’s best interests to reside with you in that overseas country. 

In deciding what is in the best interests of the child, the Family Law Court must primarily consider the following:

  1. the benefit to the child of having a meaningful relationship with both of the child’s parents; and
  2. the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Whilst the Court must consider the benefit to a child of having a meaningful relationship with both parents, the Court must give greater weight to the need to protect the child and it must not make an order which would expose the child to an unacceptable risk of any sort of harm.

Additionally, the Family Law Act requires a Judge to also consider:

  1. 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;
  2. the nature of the relationship of the child with:
    1. each of the child's parents; and
    2. other persons (including any grandparent or other relative of the child);
  3. the extent to which each of the child's parents has taken, or failed to take, the opportunity:
    1. to participate in making decisions about major long-term issues in relation to the child; and
    2. to spend time with the child; and
    3. to communicate with the child;
  4. the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
  5.  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
    1. either of his or her parents; or
    2. any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
  6. 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;
  7. the capacity of each of the child's parents and  any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs;
  8. 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;
  9. if the child is an Aboriginal child or a Torres Strait Islander child:
    1. 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
    2. the likely impact any proposed parenting order under this Part will have on that right;
  10. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
  11. any family violence involving the child or a member of the child's family;
  12. if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
    1.  the nature of the order;
    2. the circumstances in which the order was made;
    3. any evidence admitted in proceedings for the order;
    4. any findings made by the court in, or in proceedings for, the order;
    5.  any other relevant matter;
  13. 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;
  14. any other fact or circumstance that the court thinks is relevant.

Melbourne Family Lawyers have extensive court experience in the complex field of international child custody cases.  Please contact us for specific expert advice for your unique circumstances.

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