UK High Court Orders Children to Return to Mother in Australia

Judge Bellamy of the UK Family Court has ordered four children leave their father in the UK and return to live with their mother in Australia.

Following the separation of their parents, the four children of the relationship aged between 9 and 13 remained in Australia with their mother whilst their father moved to the UK. Late last year the children visited the UK to see their father. The father refused to allow the children to return to Australia at the conclusion of their trip. The mother commenced legal action in the UK seeking an order that the children be returned to her in Australia.

The court had before it evidence of the fact that all four children expressed a strong desire to continue living with their father in the UK. Although acknowledged that the children were of an age and maturity to hold reasonable views, Judge Bellamy did not deem this sufficient to order that the children remain in the UK. Judge Bellamy remarked that:

“I am not satisfied that their wishes, feelings and preferences amount to objections to returning to live in their country of habitual residence. Their views have been coloured not by unhappy memories of living in Australia but by their comfortable existence living with their father, and, as I find, by the climate he has created which is a climate based on negativity towards the mother and subtle use of his wealth.”

Judge Bellamy’s decision was based on a previous ruling of the Family Division of the UK High Court whereby a family moved from England to Australia for eight years. Following the breakdown of their marriage, the father returned to the UK, however the children were ordered to remain in Australia with the mother.

One of the issues at the heart of these cases is the views and preferences expressed by the children involved. A number of questions arise when considering the involvement of children in Australian family law disputes, such as:

1. At what age does the child become old enough for the court to take into account their views and what weight is given to those views?

There is no set formula as to how much emphasis the court will place on a child’s views in making an order or the age at which the court must consider the child’s views. The court is required to consider any views expressed by a child and apply appropriate weight in the circumstances having regard to the age of the child and their degree of maturity.

2. Through what medium or method are a child’s wishes best communicated?

Due to children being unable to give evidence in the Family Court, a child’s wishes are noted and acknowledged in a Family Report. This is then passed onto the court and used to gain an understanding of the child’s requests.

If you believe this is an area that is applicable to your current situation, here at McLaughlins Lawyers, your family lawyers on the Gold Coast, we are ready and able to help. If you would like to arrange an initial consultation, please contact our office on (07) 5591 5099.

Writer: Elise Foote

Partner: Sophie Pearson

Date: 04/08/2015