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A "Fixed Term" RelocationJune, 2011 |
Relocation cases by nature are usually conducted on the basis that there will be a permanent move by one parent to a distant location, never to return. But what about a situation where there is a certainty that a parent would return, and within a relatively short period of time?
The Facts:
- The child was three years old. The child lived with the Mother and had been primarily cared for by her since his birth. The child spent one night a fortnight with the Father.
- The Mother sought an Order from the Court that she be permitted to relocate with the child to the Philippines for employment. She had an employment contract for a defined period of three years. Part of the employment contract provided that she was entitled to two trips to Australia each year.
- Whilst there was a possibility her employment contract may be slightly extended, the Mother proposed that she would consent to an Order whereby she would be compelled to return at the end of her three year term.
- The Father sought an Order from the Court that the Mother be restrained from removing the child from Australia and that he spend time with the child (initially) each alternate weekend and then to increase to a 5 night a fortnight arrangement within a year.
- The Father's three major concerns if the Mother relocated with the child to the Philippines were: -
- His current time with his son would be unable to continue and therefore that would be detrimental to their relationship;
- He had safety concerns for the child in the Philippines; and
- That the Philippines was not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (the Abduction Convention).
Court Found:
- The child had a secure relationship with both the Mother and Father.
- The impact of the Mother moving to the Philippines for employment on the child, in terms of the child's relationship with his Father, would be modest.
- The Court formed the firm view that the Father was almost looking for reasons to oppose the Mother from taking employment in the Philippines with the child and that the Father's degree of concern for the child was not genuine.
Court Order:
- The Mother was permitted to relocate with the child to Manila, in the Philippines for three years, i.e. until 2014.
- While the child was living in the Philippines the Father was to 'spend time' with the child in Australia for two occasions each calendar year for up to 7 days at a time and to communicate with the child at least twice per week either by telephone or Skype.
The future of this case is particularly interesting as the Philippines are not a signatory to the Hague Convention on International Child Abduction (The Abduction Convention). As you will recall from previous articles the Abduction Convention is an international treaty that aims to ensure that children who are wrongfully removed (from their normal county of residence) or wrongfully retained by a parent, will be returned as quickly as possible to the country in which they habitually resided so that issues of parental responsibility can be resolved by the Court in that country.
In this case, despite the fact that the Mother was compelled to move back to Australia with the child in 2014 at the expiration of her employment contract, the reality is that if she were to disregard the Court Order and not return to Australia with the child, the Father would not be able to make an Application under the Abduction Convention to have the client returned. The Father would then be forced to commence private legal proceedings in the Philippines for the recovery of the child.
Disclaimer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances because the application of laws and regulations undergo frequent changes. For further information, please do not hesitate to contact Michael Lynch Family Lawyers on law@mlynch.com.au.