Relocation Appeal Fails: Court Not Required to Revive a “Fallback” Position the Mother Herself Disavowed

In Winston & Winston [2026] FedCFamC1A 88, Austin J dismissed the mother’s appeal from final parenting orders requiring the child to live with the father in rural Queensland and spend time with the mother. The mother had sought to relocate with the child to Brisbane, but the primary judge found the father offered greater stability, security and routine. On appeal, the mother argued she was denied procedural fairness because the Court did not reconvene the matter to seek further submissions about her fallback option of remaining in City C. Austin J rejected that argument: the mother had ample opportunity to present her case, had effectively disavowed City C as a workable option, and the primary judge was not required to disclose provisional views before delivering judgment.

🧩 Facts and Issues

Facts:

The parties had one child. During the relationship, the family lived on a rural property west of City B in Queensland. In 2018, the mother and child moved to City C so the mother could establish a retail business. The parties separated in 2019. For several years, the child moved between the parents in shared-care cycles, but that arrangement became impractical once the child started school. The child then lived primarily with the mother and spent time with the father on occasional weekends and school holidays.

The father commenced parenting proceedings in 2023 after the mother proposed moving away from City C. By trial, the mother’s primary position was that the child should live with her in Brisbane. Her fallback position was that the child remain with her in City C, but only temporarily until secondary school. The father’s primary position was that the child live with him in rural Queensland.

The primary judge ordered that the child live with the father, spend regular time with the mother, and undertake distance education while still of primary school age. The mother appealed.

Issues:

1. Was the mother denied procedural fairness because the primary judge did not reconvene the Court for further submissions on her fallback position?
2. Did the primary judge wrongly treat the case as a binary contest between Brisbane with the mother and rural Queensland with the father?
3. Did the primary judge make factual errors in finding the father offered the child the most stability?
4. Was the Court required to separately analyse and reject each alternative parenting proposal?
5. Was there appealable error in a difficult discretionary relocation decision?

⚖️ Applicable Law – Legislation, Regulations, Rules

Family Law Act 1975 (Cth)

• s 60CA — the child’s best interests are the paramount consideration.
• s 60CC — best interests factors, including safety, developmental and emotional needs, parental capacity, and benefit of relationships.
• s 64B — parenting orders may provide who a child lives with, spends time with, and communicates with.
• s 65AA — reinforces the best interests framework.

The Court emphasised that a parenting order identifies with whom the child is to live, not merely where the child is to live. The real question was therefore whether the child’s best interests were better served by living with the mother or the father, not simply whether City C, Brisbane, or rural Queensland was the best location.

📌 Precedents Relied On

• CDJ v VAJ — appeal does not succeed merely because the appellate court may have reached a different outcome.
• Norbis v Norbis and Gronow v Gronow — broad discretion in family law decisions.
• Allesch v Maunz — appeal by rehearing requires appealable error.
• U v U — relocation cases often involve difficult choices; judges are not confined to the parties’ precise proposals but are not required to conduct a roving inquiry.
• Kioa v West, SZBEL, SZGUR, Alphaone — procedural fairness does not require a judge to disclose provisional views where the issues are known and parties have had an opportunity to be heard.
• McCall v Clark and Taylor & Barker — relocation must not be treated as a separate standalone issue divorced from the broader residence/best interests inquiry.

🧠 Analysis

Issue

Did the primary judge deny the mother procedural fairness or make appealable factual/discretionary error by ordering the child to live with the father, rather than allowing relocation to Brisbane or requiring the child to remain with the mother in City C?

Rule

In parenting appeals, it is not enough to show that another judge might have made a different order. The appellant must show appealable error: a wrong principle, a material factual mistake, denial of procedural fairness, failure to consider a relevant matter, reliance on an irrelevant matter, inadequate reasons, or an outcome outside the permissible discretionary range.

Procedural fairness requires each party to know the case against them and have a reasonable opportunity to meet it. It does not require the judge to reveal provisional views after evidence and submissions close, nor to reconvene the Court simply because a party later wishes to emphasise an alternative position differently.

Application

1. No denial of procedural fairness

The mother argued the primary judge should have reconvened the hearing after deciding Brisbane was not in the child’s best interests, so that she could make further submissions about her fallback position of staying in City C. Austin J rejected this.

The parties had a full opportunity to present evidence. The mother filed written submissions and reply submissions. The father’s proposal that the child live with him was squarely in issue. The child’s residence with the father was one of the principal options before the Court, so the result did not “come out of left field”.

The mother’s argument was also weakened by how she ran the case. In final submissions, she emphasised her Brisbane proposal and expressly said that the “other scenarios” should not be elevated as proposals. In reply submissions, she said remaining in City C was not a workable solution. That made it difficult for her to complain on appeal that the Court failed to treat City C as a live fallback proposal requiring further submissions.

2. The judge was not required to disclose provisional views

The mother relied on an order that allowed the judge to call for oral submissions if needed. But Austin J held that this did not create an obligation to do so.

Where the critical issues are known and the parties have been heard, a judge is not required to say, in effect: “I am thinking of rejecting your primary case — do you want to say more about your backup?” The Court’s role is to decide the case on the evidence and submissions already made.

3. “Least disruptive” was not the same as “most stable”

The mother argued the primary judge erred by finding the father offered the child the most stability, because keeping the child with the mother in City C would have been the least disruptive option.

Austin J rejected this because the mother conflated two different concepts. A least disruptive option is not necessarily the most stable long-term option. The primary judge accepted that moving to the father would involve adjustment, but found the father offered more stability, security and routine because:

• he would not undermine the child’s relationship with the mother;
• the mother’s relocation plans had changed over time;
• the mother only proposed City C as a temporary stopgap; and
• the dispute would likely return in two years if the child remained with the mother temporarily.

4. The mother’s possible resentment was a legitimate consideration

The mother challenged findings that she might become resentful if not permitted to relocate and that this could affect the child. Austin J held those findings were open.

The mother herself gave evidence that she expected to be deeply unhappy if she could not move and worried she would become resentful of the father for opposing relocation. The single expert agreed there was a risk of that resentment. The primary judge was entitled to infer that such resentment could affect the child and the mother’s capacity to support the child’s relationship with the father.

Austin J emphasised that the primary judge did not positively find the mother would definitely resent the father, expose the child to it, or fail to facilitate the relationship. The finding was about potential risk, weighed against the father’s likely ability to support the child’s relationship with the mother.

5. The Court did not have to serially reject every alternative

The mother argued the primary judge failed to give adequate reasons for rejecting her fallback options. Austin J held that the primary judge was not required to go through each possible parenting regime one by one.

The mother had effectively taken the City C option off the table in final submissions. Even if it remained technically available, it was only temporary and would likely postpone the real dispute until secondary school. Once the primary judge found the child’s best interests were better served by living with the father, the alternate locations where the child might live with the mother became redundant.

Conclusion

The appeal was dismissed. Austin J held there was no denial of procedural fairness, no material factual mistake, and no error in the primary judge’s discretionary assessment. The mother was ordered to pay the father’s appeal costs fixed by agreement at $40,000.

🧠 Take-Home Lesson

This case is a practical relocation warning: a party cannot run a case strongly on one preferred proposal, distance themselves from fallback options, and then complain on appeal that the judge failed to give those fallback options detailed treatment.

It also reinforces that stability is broader than geography. A child staying in the same town may be less disruptive in the short term, but that does not necessarily make it the most stable long-term arrangement. Stability can include emotional security, finality, routine, and confidence that one parent will support the child’s relationship with the other.