Relocation and the Family Law in the recent decision by the Family Court of Australia in Wendland & Wendland [2017] FamCAFC 244 (21 November 2017)
This was an appeal by the father to the Full Court of the Family Court of Australia (“Full Court”) from the Federal Circuit Court of Australia. The appeal related to an order which allowed the child to be relocated with the mother, wherever the Australian Defence Force (“ADF”) posted the mother for work.
Keywords
Family Law, Child Relocation, Appeal, Australian Defence Force, Child’s Best Interests, Family Law Act 1975 (Cth), Family Law Act 1975 (Cth) section 60CC, Family Law Act 1975 (Cth) section 65DAA, Can the mother of my child move away, Can a separated parent move away, Can you move if you have joint custody, What happens when a non-custodial parent moves?
Background
The mother has been employed by the ADF since she was 20 years old and was posted to an ADF facility at Town H in 2008. The father grew up and lived in New South Wales and at the time of the hearing was employed in Queensland. In 2012, the parties met at a gym in Town H and commenced a relationship. The parties had a child together who was born in 2013. In 2014, the parties married. They separated about April 2016.
In 2016, the mother was notified by her employer, the ADF that she was likely to be posted to a different town from January 2017. The mother applied to the Federal Circuit Court for parenting orders allowing her to relocate with the child when she was posted by the ADF. In September 2016, after a 3-day hearing, the primary judge ordered in favour of the mother allowing the child to relocate with the mother.
In November 2017, the father appealed the decision to the Full Court of the Family Court of Australia in Sydney.
The Appeal
The presiding Judges over the appeal were Ainslie-Wallace, Ryan & Aldridge. Their Honours approached the appeal in consideration of the elements outlined in the Family Law Act 1975 (Cth) sections 60CC and 65DAA and other relevant grounds.
Basis of the appeal
Was the decision of the primary judge so unreasonable as to amount to an error of law and did the primary judge err by, in effect, giving a “blank cheque” to the mother?
The father's submission was in 3 parts:
- That the child was spending regular time with the father each week.
- The family report did not support the child relocating. If the child was allowed to relocate, the father would not be able to maintain a meaningful relationship with the child.
- The father submitted that the decision of the primary judge was so outside the proper exercise of discretion that it was plainly wrong.
The mother’s application was submitted without knowing the proposed destination of her relocation; although an anticipated scenario was provided. The primary judge took into consideration that the mother had provided the bulk of the financial support for the child through her long-established career within the ADF. The primary judge noted that it was important that the mother not be forced to terminate her employment due to relocation being disallowed. The mother gave evidence that she would allow the father to have regular visits and extended visits during holiday periods. These visitation rights include the extended family, to minimise any disruption to the child’s relationship with the father and extended family members.
Referring to the evidence of the family report, the primary judge considered that the report suggested any relocation would have a detrimental impact on both parents and the child. The primary judge clarified the question of whether or not relocation will affect the relationship between the child and the parent who does not relocate. The balance between the parent’s interests and the best interests of the child remains the paramount consideration.
To this effect the primary judge concluded that:
Even if the move results in the diminution of quality of the relationship, what the legislation aspires to is to promote a meaningful relationship, not an optimal relationship.
Paramount consideration section 60CC(3)(l) of the Family Law Act 1975
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living…
The primary judge concluded that the impact would be greater on the mother if she could not relocate with the child. Thus, an order for the child to relocate with the mother was justifiable in this case. The Full Court agreed with the primary judge’s determination in the circumstances and concluded with the following questions.
Did the primary judge fail to place adequate weight on the evidence that the child had a meaningful relationship with the father and the impact that relocation would have on their relationship?
The father submitted that the primary judge did not give reasons for not accepting the opinion of the family report writer’s recommendations. Those recommendations included the importance for the child to spend significant time with both parents and see both parents regularly.
The Full Court stated that it is incorrect to suggest that the primary judge did not consider the impact of the relocation on the child and her relationship with the father. On the contrary, the primary judge believed, despite the father and child being separated by distance, that while the relationship would not be optimal, it would still be meaningful. Thus, this ground has not been established.
Did the primary judge fail to consider, weigh and assess all the evidence relevant to the considerations in s. 60CC? Specially, did the primary judge consider the family report and the oral evidence given by the family report writer?
The father submitted that the primary judge failed to accept the opinion of the family report which suggested it is not in the best interest of the child to relocate with the mother where the following questions are to be considered: (a) potential relocation to an unknown place; (b) any subsequent relocation, as the child is an only child; (c) relocating the child away from her father and the paternal grandmother; and (d) changing schools potentially more than once if the order is granted.
The Full Court rejected these contentions and said the primary judge relied heavily on the father’s assertion of his relationship with the child. The Full Court said that the primary judge was not obliged to follow the family report’s recommendations. The evidence and the practical difficulties for both parties must be reasoned with the child’s paramount consideration in the matter as to the benefit of seeing both parents “as often as resources allow”. The Full Court agreed with the primary judge and affirmed his Honours’ decision.
Did the primary judge err in making findings that were not open on the evidence?
The father submitted that it was not open to the primary judge to consider the impact it would have had on the mother if she had to resign from the ADF if relocation was not granted.
The Full Court found that the mother’s affidavit supported the primary judge’s decision. The mother’s affidavit provided profound evidence as to the impact it would have on her and the child if she had to leave the ADF. Most notably, it is the mother who provides the bulk of the financial security to the child through her secure employment with the ADF. The Full Court found that the primary judge’s findings were inferences reasonably drawn from this evidence and accordingly were relevantly considered as appropriate to the child’s best interest.
Did the primary judge failed to consider section 65DAA(2) of the Family Law Act 1975 in relation to whether it was in the child’s best interests to spend substantial and significant time with the father, and the reasonable practicability of the parties’ respective proposals?
The Full Court agreed with the primary judge’s determination and said his Honour made the order after careful consideration to what was practical in the circumstances. In particular, if the mother and child relocated, the distance between the parties means that neither equal time nor substantial and significant time with the father would be reasonably practicable.
Conclusion
The relocation order was made after careful consideration in relation to the mother’s substantial involvement in the financial, emotional and social care of her child. Whilst the child’s best interests of spending equal and substantial time with both parents was considered, such an outcome would not be practicable nor in the paramount interest of the child in these circumstances. The appeal was dismissed.
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