APPEAL – CHILDREN – Relocation – Appeal against orders of Federal Magistrate which prevented the mother relocating with the children from country Victoria to Brisbane – Father spent time with children every third weekend and periods of holidays, with no desire for an increase – Mother proposed to set aside proceeds of sale of her new husband’s home as a travel fund so that children could spend time with the father almost as frequently as before the move – Federal Magistrate considered the mother unlikely to keep her pledge and that it would not be in the children’s best interests in any case when neither party had any other assets or income of significance – Federal Magistrate considered that the children’s ability to have a meaningful relationship with their father would be at risk if they spent less time with him.
HELD – the legislative changes wrought by the Family Law Amendment (Shared Parental Responsibility) Act 2006 do not cast an onus of proof on the relocating parent and the child’s best interests remain the paramount consideration – The evidence in this case indicated that the children would retain a meaningful relationship with their father if relocation were permitted provided some monies were set aside to secure regular travel – Federal Magistrate failed to adequately explore the possibilities of different arrangements for the children to spend time with their father as described in A and A: Relocation approach (2000) FLC 93-035 – Children to travel to Victoria four times a year and the father come to Brisbane twice a year if he so desires – Appeal allowed – Discretion re-exercised.
Order 1 of the orders made by Federal Magistrate Riley on 19 October 2006 be set aside.
Upon the mother placing the sum of $20,000 into an interest bearing bank account to be drawn down only for the purposes of funding the travel referred to in these orders, and upon the mother providing the father with details of the account number and the institution where the account has been opened, the mother be permitted to relocate to Brisbane with the children T born in June 1995 and C born in August 1999.
That upon the mother relocating to Brisbane with…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Godfrey & Sanders [2007] FamCA 102
Case
[2007] FamCA 102
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal by a mother against orders made by a Federal Magistrate that prevented her from relocating with her children from country Victoria to Brisbane. The father had a standing arrangement to spend time with the children every third weekend and during holiday periods, with no expressed desire to increase this time. The mother proposed to establish a travel fund from the proceeds of the sale of her new husband's home to facilitate continued contact between the children and their father. The Federal Magistrate had found the mother's pledge unlikely to be honoured and that, in any event, the proposed arrangements would not be in the children's best interests, given the limited financial resources of both parties. The Magistrate concluded that the children's ability to maintain a meaningful relationship with their father would be jeopardised by the reduced time spent together.
The primary legal issues before the court were whether the legislative changes introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 imposed an onus of proof on a relocating parent, and how the paramount consideration of the children's best interests applied in this relocation dispute. The court was also required to consider whether the Federal Magistrate had adequately explored alternative arrangements for the children to spend time with their father, consistent with established relocation principles.
Justice Kay held that the 2006 amendments did not shift the onus of proof to the relocating parent, and that the children's best interests remained the paramount consideration. The evidence suggested that the children could maintain a meaningful relationship with their father if relocation were permitted, provided adequate financial provision was made for regular travel. The Federal Magistrate was found to have failed to sufficiently consider the possibilities for different time-spending arrangements, as outlined in the relocation approach discussed in *A and A* (2000) FLC 93-035. Consequently, the appeal was allowed, and the discretion was re-exercised.
The court ordered that the children would travel to Victoria four times per year, and the father would have the option to travel to Brisbane twice per year if he so desired.