Family Law Relocation Case – Appeal to Full Court of the Family Court of Australia
In a recent family law relocation case reported under the pseudonym Gaffney & Gaffney, the father appealed relocation orders relating to his two children (approximately 8 and 5). In the first instance, the Federal Magistrates Court permitted the mother to relocate from a small coastal town near Port Macquarie to Sydney with the children.
The matter was appealed the Family Court. Justices May, Ainslie-Wallace and Rees delivered their decision on 31 August 2012.
Background
The parties separated in September 2010 and put in place a week about caring regime (shared custody) for the children which continued until July 2011.
In July 2011 the parties consented to interim orders which continued the shared parenting arrangement so long as the mother lived in the same area as the father. When the mother moved to Sydney, the children would remain living with the father.
After those orders were made, the mother made enquiries about resuming her former employment (from which she had recently resigned) but there was only the prospect of some casual employment. She could not afford to remain in the Port Macquarie area and she moved to Sydney.
At the trial, the husband’s position was that he would remain living in the Port Macquarie area and would not move to Sydney. The mother’s position was that she would not move back to live in Port Macquarie. The parties had agreed on a regime of time to be spent between the children and the parent with whom they were not living.
Issue for Determination – Relocation and Living arrangements
The issue for determination was with whom the children were to live and the Federal Magistrate found in favour of the mother, thus permitting a relocation of the residence of the children.
The Appeal
The appellant father challenges the Federal Magistrate’s decision on six grounds of appeal.
Ground 1: The learned Federal Magistrate failed to consider, or in the alternative, properly consider the impact on the children by a change in their existing living arrangements.
Ground 2: The learned Federal Magistrate failed to consider, or in the alternative, properly consider the impact on the children of their relationship with the paternal grandmother as a consequence of their relocation.
Ground 3: The learned Federal Magistrate made factual errors.
Ground 4: The learned Federal Magistrate failed to have proper regard to the recommendations of the family report writer.
Ground 5: The learned Federal Magistrate failed to properly apply the applicable principles in “relocation cases”.
Ground 6: The learned Federal Magistrate failed to objectively assess the evidence and, as such, made findings adverse to the appellant which were not open to the learned Federal Magistrate on the evidence.
Role of the Family Consultant
The Family Court judgment discussed the role of the Family Consultant – they are not expected to be experts in the law, and it is not reasonable for such persons to provide their own opinions about the merit of relocation cases generally.
During the hearing in the Federal Magistrates Court, the Consultant was asked to comment on the mother’s relocation to Sydney. The Consultant said:
Yes. I traditionally view relocations as needing some kind of validity with regards to the children’s needs and, really, there are two critical factors where I often support relocation and they will be a history of family violence issues, which was absent in this scenario, and any issue of possible child protection concerns and children being with another parent.”
The Court considered that the circumstances in which the Consultant said that relocation would only have “validity” is contrary to the law and jurisprudence of the Court.
“ Although Division 12A provides that aspects of the Evidence Act do not apply to matters involving children, that does not in our opinion alter what we regard to be a fundamental principle about expert opinion which is that the expression of opinion must meet the criteria to which we have just referred.”
The court considered that the view permeated the Consultant’s report and viva voce evidence and led him to the conclusion that although the mother was the preferred carer of the children and would be the more appropriate carer of the children, she would only be able to perform that role if she lived in a particular geographical area.
Discretionary Judgment
The Court considered that it is not enough to argue that another judge would have come to a different decision on the same facts and referred to the case of Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513 at page 519 per Stephen J:
…an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion…
Family Court Judgment
The Family Court considered the appeal and found that the appellant had not demonstrated any matters which would amount to appealable error and the appeal was dismissed.