Father Opposes Orders Permitting Relocation of Child's Residence

Hamady & Mansour [2022] FedCFamC1A 1 (11 February 2022)

The primary judge made orders permitting the mother to relocate the child’s residence following an initial regime of time with the father.  By an (Amended) Notice of Appeal, the father appeals from such orders.  The father contended that finding the orders were reasonably practicable was not open.  The Court, in resolving this dispute, relied upon the Family Law Act 1975 (Cth).

Facts:

By an (Amended) Notice of Appeal filed 22 March 2021, the father appeals from Orders made on 27 January 2021 by a Judge of the Federal Circuit Court of Australia in respect of the parents’ only child, X.  Orders made at the same time under s 79 of the Act, providing for the father to pay a sum of money to the mother, are not challenged.  The parents’ relationship began in January 2018 and they separated in June 2019 when the child was four months old.

After separation the mother moved to Melbourne with the child, however as a result of an interim parenting judgment by the same primary judge, the mother was ordered on 10 January 2020 to return the child to Sydney, which she did.  The mother, however, maintained her proposal that the child should be permitted to reside in Melbourne with her, which at all times has been opposed by the father.  It has been agreed that the child will live with the mother, however the father said that should occur in Sydney.  Apart from the evidence of the parents and the maternal grandmother, evidence by a Family Consultant in a Family Report dated 13 July 2020, was also before the primary judge.  

The Orders under appeal effectively permitted the mother to relocate the child’s residence to Melbourne after 30 June 2022 (when the child would have reached almost three and a half years of age) with an initial regime of time with the father of three days a week from 7.00am to 4.00pm (Order 7(a)).  From 1 July 2022, the child’s time with the father is to progress to overnight time, each alternate weekend (10.00am Saturday to 5.00pm Sunday) with a three night period during the first week of each Victorian school holidays and special days (Order 7(b)).  Changeovers after the permitted relocation were to take place at Tullamarine Airport, unless otherwise agreed (Order 9(b)).  Until 30 June 2022, the mother could elect to suspend the child’s time with the father for two 14 day periods on written notice (Order 10).

Communication by electronic means post-relocation once a week with the father was also ordered (Order 11).  The dispute over the allocation of parental responsibility for the child was resolved by the primary judge finding the parties should have equal shared parental responsibility. 

Issue:

Whether or not the primary judge erred by failing to consider whether the orders were in the child’s best interests and reasonably practicable. 

Applicable law:

Family Law Act 1975 (Cth) Pt VII ss 60CC, 61DA, 65DAA, 79 - intersects in cases where one party wishes to relocate a child’s residence to a geographically distant place at the possible expense of the quality of the child’s relationship with the other party.

Analysis:

The order for the parties to have equal shared parental responsibility under s 65DAA of the Act. Since neither party nor the ICL proposed that the child should live with the father for “equal time” (s 65DAA(1)), the focus of attention moved to whether orders should be made for the child to spend “substantial and significant time” with the father (s 65DAA(2)).  The mother was deeply unhappy living in Sydney, where she was financially dependent upon the father.  She strongly desired to move back to Melbourne, from where she had originally come and where she would be much happier living with or near to her family.

The preclusion of the mother’s relocation with the child to Melbourne for 18 months was designed to enable the child’s relationship with the father to consolidate.  The primary judge acknowledged the father’s arguments about inter-state travel being onerous and then impeded by pandemic restrictions, but found the father could either relocate to Melbourne himself without adversely affecting his business interests or travel between Sydney and Melbourne with relative ease.  The father contended the appealed orders were beset by errors of principle, a material mistake of fact, and discretionary errors.  

There was no “failure” to consider the two separate questions of whether orders for the child to spend substantial and significant time with the father were in her best interests and reasonably practicable to implement.  The primary judge expressly found it was too early to tell from the evidence whether the orders proposed by the father would be in the child’s best interests.  On the express terms of Ground 2, the failure to succeed on Ground 1 would end any argument available to the appellant, however during oral submissions the appellant, in effect, sought to amend the ground of appeal by removal of the words “as a consequence of the error contended for in paragraph 1” and with the consent of the ICL the amendment was permitted.  As then argued, Ground 2 was inter-dependent with Ground 1 and it too must be rejected. 

Binding authority firmly establishes the principle that questions of relocation are integral to the exercise of discretion under Pt VII of the Act and ought not be considered as a discrete issue.  The considerations which influenced the primary judge to conclude the best solution was for the mother and child to live in Melbourne have already been addressed.  By comparison, the father had the flexibility of self-employment by undertaking building developments.

Conclusion:

There was no failure by the primary judge to engage with the conditions prescribed by s 65DAA of the Act, so Ground 1 must fail.  The orders made by the primary judge were reasonably open on the evidence and the related grounds shall fail.  There will be no order for costs of the appeal.