Browne & Keith

In this case, the appellant, the mother, and the respondent, the father, were involved in a dispute over the relocation of their child. The matter was heard in the Family Court of Australia. The mother appealed against the interim orders made by Judge Myers on 27 March 2015, which required her to return with the child to New South Wales. The mother had lived in Western Australia until the commencement of her relationship with the father, and the parties had lived together in northern New South Wales. They had agreed to return to Western Australia, either as a family or if separated.

The legal issues before the court were whether the trial judge erred in failing to identify the source of power used to make the orders, finding that the mother had "unilaterally" relocated to Western Australia, relying on a misstatement of law, failing to give weight to serious matters such as the father's drug abuse and mental health, and uncritically accepting the father's evidence. The court also needed to consider the effect on the mother of requiring her to relocate to New South Wales from Western Australia, where she had no financial or emotional support and limited access to housing.

The court found that the trial judge erred in several respects. The judge failed to identify the source of power used to make the orders, misstated the law, and did not give sufficient weight to the father's drug abuse and mental health issues. The court also found that the trial judge uncritically accepted the father's evidence and failed to consider the effect on the mother of requiring her to relocate to New South Wales from Western Australia. The appeal was allowed, and the orders were set aside. The matter was remitted for re-hearing before a judge of the Federal Circuit Court other than Judge Myers. Costs certificates were ordered for both parties, but the application by the Independent Children's Lawyer for a costs certificate was dismissed.