Change in residence – When will a Court order a change in residence for a child?
At a Final Hearing, a Court is required to determine what orders are in the best interests of the children. Sometimes this may necessitate a change in residence of the children.
The two primary considerations in determining what orders are in a child’s interests are the child’s right to have a meaningful relationship with both parents, balanced against the child’s right to be protected from harm.
Where a child is at risk of physical or psychological harm, abuse or neglect in the care of one parent, their right to be protected from harm is given priority over the child’s right to have a relationship with that parent.
In circumstances, this may necessitate a change of residence of the child in order to protect that child from harm they are suffering in the care of one parent.
In Zabek & Bracewell [2018] FCCA 1710 the Court determined that the children were at risk of harm in the Mother’s household and that it was in the children’s best interests to live with the Father.
Courtney’s Cases: Zabek & Bracewell
This was a Final Hearing involving competing residence applications for two children aged 7 and 5.
Orders made for children to live with the Father and spend 3 hours on saturday and sunday each fortnight with the Mother.
The Court found that there were risks of harm to the children in the mother’s household including family violence and drug use in the mothers household with her partner.
The Court further found that the mother’s partner posed an unacceptable risk of harm to the children and that the mother was unable to protect the children from those risks because she was unable to prioritise the children over her partner. Mother and partner found to denigrate father in her household causing psychological harm to the children.
Court assessed the mother would be unable to keep the children away from her partner because she has an unborn child to him, does not prioritise children’s needs and she does not see her partner as a risk. Mother found to lack insight to be able to make decisions in the children’s best interests.
Change in residence applications
Are you concerned your children are at risk of harm in the other parent’s household?
We strongly encourage you to obtain prompt legal advice about the risk factors. If you sit and do nothing and allow the other parent to continue to spend time with the child without either (a) asserting the risk that exists and (b) commencing court proceedings, the Court may perceive that you do not believe that the children are at risk of harm in the other parent’s household, due to your conduct.
If you are in a similar situation, contact us to book a reduced rate initial consultation to discuss what strategies you can put in place and a plan of attack to ensure your children are safe from harm.
