Godfrey & Sanders

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.