Are you concerned about relocation of your child to live in another place? Are you worried that your former partner may try to do that?
The Full Court of the Family Court of Australia in the case of Wendland & Wendland  FamCAFC 244 dismissed an appeal against a decision of the primary judge who had made an order allowing the mother to relocate the 4 year old child of the relationship to wherever she may be posted.
At the time of the hearing before the primary judge, the mother had been working for the Australian Defence Force for 18 years since she was 20 years of age.
At the time that the primary judge had made the order, the mother and child had been living in Queensland where the child had grown up and it was not then known whether the mother may be posted elsewhere or when that may occur or to what place a posting may be made.
The primary judge found that notwithstanding the birth of the child, during the relationship the parties had planned to move as a family in the event the mother was posted to work elsewhere.
In late 2014 the parties married. They separated in March or April 2016.
At the time of the hearing before the primary judge, the child lived with the mother and spent time with the father every afternoon from Monday to Thursday from after day care to dinner time. The child also spent every alternate Wednesday night and each alternate Friday and Saturday night with the father, returning to the mother’s care on Sunday afternoons.
At the time of the hearing of the appeal by the Full Court, the mother had been posted to another state.
Submissions by the Father
The father submitted that the following facts showed that the order made by the primary judge was unreasonable:
- the child had lived her whole life in a particular town in Queensland;
- the child was spending regular time with the father every week; and
- the writer of the family reports did not support the child relocating.
The father submitted that the finding of the primary judge did not give effect to the best interests of the child because any relocation would not allow for the child to maintain a meaningful relationship with both parents.
The Full Court said that whilst points a. and b. were true, they did not of themselves operate to stop relocation occurring. The Full Court said that the test is what is in the child’s best interests and those points are only two of the matters that must be taken into account, referring to a number of factors that the primary judge had considered.
Best Interests of Child
The Full Court confirmed that in relocation cases, the best interests of the children remains the paramount consideration.
The primary judge had considered that if he had accepted all of the father’s submissions, it would be very hard to ever justify any child relocating from where the child grew up, especially if there is no risk to the child and especially if the presumption had not been displaced. However, Courts order relocations “all the time, as long as such a relocation is in the best interests of the child. The main argument that the father advances is that his relationship with [the child] will necessarily be diminished if relocation is allowed.”
The primary judge had referred to Godfrey & Sanders  FamCA 102 and the determination on appeal in that case that in relocation cases, the best interests of the children remain the paramount consideration. On the issue of whether a relocation will affect the relationship between the children and the parent who will not relocate, in that case, the Court said in effect that even if a move results in the diminution of quality of the relationship, it is the promotion of a meaningful relationship, not an optimal relationship to which the Family Law Act 1975 (Cth) aspires.
The Full Court said that the primary judge clearly had in mind both the close and meaningful relationship that existed between the child and the father and the fact that any relocation of the child would diminish that relationship. The primary judge had also made findings as to the value of the meaningful relationship with the father and the effect of a relocation being that “[w]hile the relationship will not be optimal, it will still be meaningful” even though the primary judge recognised that the quality of the relationship would be diminished.
The primary judge had therefore considered the impact of the relocation on the child and her relationship with the father.
The Full Court said that the primary judge had found that the order proposed by the mother allowed the child to spend time with the father via air travel which was reasonably practicable and could be afforded.
In the case of Wendland, the family report writer had given an opinion that without knowing the proposed destination on any relocation, the effect on the relationship between the father and the child could not be determined so that he therefore recommended against the order proposed by the mother allowing her to relocate the child wherever she was posted.
The Full Court said that the primary judge had clearly taken into account the report writer’s opinion that a relocation would diminish the relationship between the father and the child. However, the judge was not obliged to accept the report writer’s opinion.
The Full Court said that the evidence of an expert is simply evidence that must be considered along with all the other evidence in the matter. It was for the primary judge to determine the weight to be given to it (Muldoon & Carlyle  FamCAFC 135 ).
Conclusion of Full Court
Weight was given by the primary judge to the family report writer’s opinion but weight was also given to the mother’s freedom to pursue her career and to live where she wished as well as the effect on the child if the mother was obliged to give up her career and remain living in the town where the child had grown up.
The primary judge had also given significant weight to the finding that the child would still maintain a meaningful relationship with the father in the event of a relocation even though that relationship would be different in nature.
Contact us if you have any relocation or other parenting issues. Our family lawyers Brisbane are experienced in dealing with these matters and is ready to assist you.
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