FAMILY COURT OF AUSTRALIA
| MORDEN & COAD | [2019] FamCAFC 233 |
| FAMILY LAW – APPEAL – RELOCATION – Where the trial judge made orders permitting the mother to relocate with the parties’ two children – Where that relocation resulted in the mother living 120 kilometres away from the father – Where the father had an older child from a previous relationship who was involved in the children’s lives – Where the father was involved in the children’s extra-curricular and schooling activities – Where the mother’s main reason for seeking relocation was on the grounds that she could more easily obtain better housing for herself and the children – Where the father argued the children were well settled in their school and social networks – Where the trial judge found that, whilst the children’s relationship with the father may suffer, that was not sufficient to categorise the move as not in the children’s best interests – Where the father challenged the trial judge’s statement that there were “effectively two proposals” – Where the father asserted the trial judge applied an erroneously low benchmark when considering whether to permit the mother to relocate – Where the father asserted errors of weight – Where the father’s arguments rely upon a highly selective and simplistic view of the reasoning of the trial judge which cannot be supported when the reasons are considered holistically – Where none of these grounds have any merit – Where the appeal is dismissed – Where the father is to pay the mother’s costs in a fixed sum. |
| Family Law Act 1975 (Cth) ss 60CC, 65DAA, 117 |
| CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52 Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21 Sayer v Radcliffe (2012) 48 Fam LR 298; [2012] FamCAFC 209 U v U (2002) 211 CLR 238; [2002] HCA 36 Wendland & Wendland (2017) FLC 93-808; [2017] FamCAFC 244 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48 |
| APPELLANT: | Mr Morden |
| RESPONDENT: | Ms Coad |
| FILE NUMBER: | MLC | 9796 | of | 2018 |
| APPEAL NUMBER: | SOA | 58 | of | 2019 |
| DATE DELIVERED: | 28 November 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Kent & Austin JJ |
| HEARING DATE: | 28 November 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 September 2019 |
| LOWER COURT MNC: | [2019] FCCA 2682 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Dr Ingleby |
| SOLICITOR FOR THE APPELLANT: | Howard Bear – Legal Consulting Services |
| COUNSEL FOR THE RESPONDENT: | Mr O’Shannessy SC |
| SOLICITOR FOR THE RESPONDENT: | Geelong Family Lawyers Pty Ltd |
Orders Made 28 November 2019
The appeal be dismissed.
The appellant pay the respondent’s costs of the appeal fixed in the sum of $24,000.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment…
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- AGLC
- Morden & Coad [2019] FamCAFC 233
- Case
- [2019] FamCAFC 233
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the trial judge correctly applied the statutory criteria under section 60CC of the Family Law Act, particularly in relation to the paramountcy of the children’s best interests and the significance of maintaining a meaningful relationship with both parents. The father contended that the trial judge placed undue emphasis on the potential for a meaningful relationship to continue after the move, rather than on the overall best interests of the children.
The court found that the trial judge had correctly applied the statutory framework and maintained that the children’s best interests were the paramount consideration throughout the decision-making process. The court noted that while the relocation would inevitably alter the relationship between the children and their father, the evidence did not support the conclusion that this change would render the relationship meaningless or detrimental to the children. The trial judge’s observations were contextualised within the broader framework of determining the children's best interests, and the court found no error in the trial judge's application of the statutory criteria.
The appeal was dismissed, and the trial judge's decision to allow the relocation was upheld. The court found that the trial judge had adequately considered all relevant factors and that the decision to relocate was in the best interests of the children.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
At [79], the trial judge recorded:As set out, the legislation does not require the Court to ensure an optimal relationship between the children and their Father. My focus at this consideration is whether they will benefit from having a meaningful relationship with him. Whilst the Mother’s proposals do not provide an optimal relationship between the children and their Father, I could not be satisfied that the move as proposed by the Mother would result in the relationship between the children and the Father no longer being meaningful or significant to them. The evidence would not support a finding that they would not continue to benefit from their relationship with the Father in the event of a relocation. The relationship between the children and the Father will inevitably alter, but not to the extent that the relationship will no longer be meaningful or beneficial to the children.(Emphasis added) By Ground 5, the father argues the trial judge found that a “meaningful and beneficial relationship” was the benchmark rather than the best interests of the children. However, [79] must be read in its context. It appears under a heading “The considerations pursuant to section 60CC of the Act”. The first paragraph under that heading is [71], which states:The children’s best interests are paramount in these proceedings. In determining their best interests, there are two primary matters or considerations, and several additional matters or considerations which I am required to take into account.(Emphasis added) The trial judge goes on to set out the primary considerations under s 60CC(2) and it is in the context of considering s 60CC(2)(a) that the trial judge makes the observations set out in [79]. The father also argues that the trial judge does not apply the “best interests” test until the “wrap up” of [122]. However, it is abundantly clear that the trial judge was aware of the relevant “benchmark” being the children’s best interests and applied that standard throughout the reasons. The trial judge refers to the best interests of the children being the paramount consideration, either directly or indirectly, at each of [57], [59], [60], [61], [64], [65], [67], [69], [71], [100]-[102], [115] and [122]. As for Ground 2, the father’s argument is that the trial judge placed undue weight on the finding that the children would maintain a “meaningful and beneficial relationship” with the father even after relocating. Notably, the father does not cavil with the accuracy of the finding, just the weight attributed to it. The father’s Summary of Argument appears to first state that the relevant finding was “hardly open” on the evidence before stating the trial judge failed to adequately consider matters set out at [86]. That paragraph states:This is a significant consideration in this case. It will be a substantial change for the children if the Mother is permitted to move to [Suburb D]. They will move to a new area, change schools and not see their Father or sister as often as they currently do. The Father will not be able to be as involved with their extra-curricular activities … It is likely the children will experience a sense of loss that their Father and sister will not be as involved in their world as they currently are.