In Blogs 3 and 4 we delved into the ins and outs of relocation, the criteria considered by the court and some of the difficulties a court faces in dealing with these types of applications.
You can access our previous blogs on relocation here:
In a recent case before the Federal Circuit Court of Wendland & Wendland, Judge Vasta was faced with the highly unusual task of a mother seeking a relocation with her child to an as yet unknown location. In that case, he made orders permitting the mother who had worked for the Australian Defence Force for 18 years to relocate their child (4) to wherever she was posted.
In Wedland & Wedland, the Full Court has just recently heard an appeal by the child’s father against the decision of the primary judge to allow the child to relocate with her mother to wherever the mother is posted by the Australian Defence Force.
The parties had met when the mother was posted to their current location. Following separation, the child had lived with the Mother and spent substantial time with the Father each week. It was not known if, when or where the mother might be posted to a different relocation.
The Father objected to the court permitting the child to relocate with the Mother on the following summary grounds:
- The court had given the Mother what amounted to a ‘blank cheque’ as to the child’s future, to relocate anywhere in Australia, depending on where she was posted by the ADF in the future;
- Until the location of any posting was known informed decisions could not be made as to the child’s best interests. However, by the time of the appeal the mother had been posted to another state;
- That the Judge did not give appropriate weight to the family report writer’s opinion, which recommended against the relocation on the basis that it would diminish the relationship between the child and the father and paternal grandmother;
- The chief argument, that his relationship with his daughter would necessarily be diminished.
The appeal by the Father was ultimately dismissed by the full court, the appellate judges stating that the findings of the primary judge were open to him and no errors had been made by the Judge.
The case was unusual by nature of the mother’s career, having spent the better half of two decades employed by the ADF and it was said that this lengthy service in the ADF had shaped the mother’s identity and “is now part of who she is”.
The Father’s argument that his relationship with the child would be necessarily diminished was addressed by the primary judge having regard to earlier decisions which have found that “what the [family law] legislation aspires to is to promote a meaningful relationship, not an optimal relationship…While the relationship [between the father and daughter] will not be optimal, it will still be meaningful. This is in contrast to the relationship between the mother and the child which would change drastically if the mother were to leave the ADF and, in effect, change her very identity.”
The Judge found that the Mother was likely to encourage and facilitate a meaningful relationship between the Father and child by offering to pay for the father to travel to the new location on a number of occasions each year.
In relation to the ‘blank cheque’ nature of the order, the primary judge noted that the Mother was likely to be the subject of future postings and a final decision was needed to avoid infinite litigation being instituted upon each posting of the mother. The appeal judges found that the primary judge had given thought to the wide nature of the order and that he had not erred in finding that there would be a “profound effect on the mother and the child should the mother be required to give up her career with the ADF.”
The full court confirmed that the primary judge was not obliged to accept the opinion of the family report writer and it was a matter for him to determine the weight to be given to the report. Whilst weight was given to the report, weight was also attached to the mother’s freedom to pursue her career and to live where she wished and the effect on the child if the mother were forced to abandon her career. which was an integral part of who she was. Significant weight was given to the finding that in the event of a relocation the child would still maintain a meaningful relationship with the Father, although of a different nature.
Are you seeking to relocate with your children?
Are you seeking to relocate to another town, state or country with your child/children? If you are, it is important that you seek legal advice as early as possible. In relocation cases, it is particularly important that your lawyer is able to take a step back in the preparation process early on and plan a strategy and method of telling your story to the court, to maximise the prospects of success of your application to relocate the children.
Contact us today to book a reduced reduced rate consultation with one of our family law experts to have a confidential discussion about your individual circumstances. We will provide you with advice and a plan to enable you to be able to move on with your life.
