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Following the separation of Sally and John, John wanted to ensure that Sally would not take the two children of the marriage back to England. John wanted to stay in Australia and to have a good relationship and significant time with the children.
John and Sally’s marriage was over and they had separated. John, Sally and the children have lived in Sydney during the period of the marriage. All of Sally’s family reside in the United Kingdom and John was and continues to be concerned that Sally will take the children and return to London. John wanted to make sure that this did not happen.
John sought advice from Watson & Watson. Dennis Grant, Senior Family Law Solicitor provided advice as to the process and the likely outcome, the rights and obligations of each of John and Sally in relation to the children. Dennis Grant advised of the evidence required.
An urgent application was made to the Federal Circuit Court of Australia for Orders placing the name of both children under the Airport Watch List. The Application was made quickly and we were able to obtain a listing for the children on the Airport Watch List which prevented Sally from leaving Australia without John’s consent or an Order of the Court.
Once the children are placed on the Airport Watch List the Court was asked to decide whether the children should stay living in Australia or go with Sally to the United Kingdom. The Court decides the issue taking into account the following matters:
1. The Court will determine the issue of relocation by looking at the best interests of the children. The Court does not need to find compelling reasons for or against the relocation.
2. The best interests of the child are evaluated by taking into account considerations including legitimate interests of both the resident and non-resident parent.
3. Neither the person wanting to move or the person wanting to stay has the overriding onus of proving their case.
4. The Court treats the welfare or the best interest of the child as the paramount consideration however the Court does not have to ignore the legitimate interests and desires of the parents. If a parent seeks to change arrangements affecting the residence of or contact with the child, he or she must demonstrate the proposed changes are in the best interests of the child.
An urgent Order was made preventing the children from leaving Australia and following the hearing on the issues as to where the children should live the Federal Circuit Court made an Order that the children were to live in Australia, more particularly in Sydney where John and Sally had lived with the children during the greater part of their marriage.
The outcome may very well have been different if the children had travelled overseas, stayed overseas and established their home in England. Accordingly, urgent action was required and as John took the urgent action to have the children remain in Sydney where they were living together and continued to live there until the decision of the Court. The outcome was the appropriate outcome John was hoping for.
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