H & T

The Full Court of the Family Court of Australia considered an appeal by the husband against orders made by a single judge permitting the wife to relocate with the child, B, to America. The dispute concerned the best interests of the child, B, in the context of a proposed international relocation.

The primary legal issues before the Full Court were whether the trial judge had erred in her assessment of the likely effect of the relocation on B's relationship with her father, and whether she had correctly applied the principles for determining the best interests of the child, particularly in relation to practical difficulties and expenses of contact, and the wife's proposed arrangements for maintaining contact.

The Full Court found that the trial judge had not adequately evaluated all relevant matters when making her orders. Specifically, the trial judge appeared to have treated the wife's commitment to annual visits to Perth as a pre-condition for relocation, rather than as one factor to be weighed in the overall assessment of B's best interests. The Full Court noted that the trial judge had not sufficiently considered the likelihood of the wife complying with her promises regarding contact, nor had she fully assessed the potential for telephone and email contact, underestimating the capacity of a young child to adapt to technology. The trial judge's conclusion that relocation would be permitted only if the wife attended in Perth each year was considered an impermissible approach unless it followed a comprehensive evaluation of all positive and negative aspects of each party's case.

The Full Court allowed the appeal, setting aside the orders of the trial judge and remitting the matter for redetermination.