Lorreck & Watts

In this family law case, the wife sought to relocate from Canberra to Cairns with the two children of the marriage, while the husband opposed the relocation. The Federal Magistrate had previously prevented the wife from relocating, citing concerns about the youngest child's ability to sustain a relationship with the husband if he had only occasional periods of contact. The wife appealed against the order, arguing that the Federal Magistrate's finding was not supported by the evidence and that the possibility of the husband relocating to Cairns had not been properly considered. The Full Court of the Family Court of Australia allowed the appeal and permitted the wife to relocate to Cairns.

The primary issue for the court to determine was whether the Federal Magistrate erred in preventing the wife from relocating to Cairns with the children. The court considered whether the Federal Magistrate's finding that the youngest child would be less able to sustain a relationship with the husband if he had only occasional periods of contact was supported by the evidence and whether the possibility of the husband relocating to Cairns had been properly considered. The court found that the Federal Magistrate's finding was not supported by the evidence and that the possibility of the husband relocating to Cairns had not been properly considered. The court concluded that the Federal Magistrate's decision to discount the possibility of the husband relocating constituted appellable error.

The court allowed the appeal and permitted the wife to relocate to Cairns. The court held that the Federal Magistrate's other findings provided a sufficient basis on which to redetermine the matter. The court remitted the matter to the Federal Magistrates Court for determination of the discrete issue of the costs of travel required for the husband to spend time with the children. The court also granted costs certificates to both parties in relation to the appeal and rehearing. The Full Court ordered that the wife be permitted to change the children's place of residence to Cairns and set out detailed arrangements for the husband to spend time with the children during school holidays and terms. The court also ordered that each party may communicate with the children by phone, post, or email at all reasonable times when the children are in the care of the other party, and the party who has the care of the children shall facilitate and make the children available to receive such communication.