Shephard and Shephard

In the Family Court of Australia, Mr Shephard (the applicant father) sought leave to take his two sons, H and T, to live in South East Asia for a period of eight months. Ms Shephard (the respondent mother) was the other party to the proceedings, and Ms Lehmann acted as the Independent Children’s Lawyer. The application was heard by Watts J in Cairns.

The primary legal issue before the court was whether it was in the best interests of the children, H and T, to grant the father permission to relocate them to South East Asia for an extended period of eight months. This involved considering the father's application against the backdrop of the children's living arrangements, their relationship with their mother, and the potential impact of such a relocation on their welfare.

Watts J reasoned that the father, having had primary care of the boys for the preceding three years, was not a significant flight risk, noting his continued ties to Australia through social security benefits and another child. The court was satisfied with the father's stated reasons for the relocation and his ability to make reasonable arrangements for the children's education during their time abroad. Applying the paramount consideration of the children's best interests, the court found that the proposed relocation was in their welfare. The court ordered that any previous orders inconsistent with the father's relocation be suspended for eight months from 9 September 2012, and granted the father liberty to take the children to South East Asia for no longer than eight months, subject to a comprehensive list of conditions designed to maintain the children's contact with their mother and ensure her ability to visit. These conditions included providing a full travel itinerary, return air tickets, details of their accommodation and contact numbers in South East Asia, and ensuring regular communication via Skype and text. The father was also required to ascertain the cost of a return air ticket for the mother and her infant child to visit during the Christmas holidays, with the funds to be deposited into the Independent Children's Lawyer's trust account. Both parties were ordered to sign all necessary documents to facilitate these arrangements.