Starr & Duggan

The appeal in this matter arose out of an application for parenting orders made under the Family Law Act 1975, which the Federal Magistrates Court considered and determined in February 2008. The appellant, the mother, sought to relocate with the child to New Zealand and argued that she should be permitted to do so. The respondent, the father, opposed the relocation on the basis that it would be contrary to the child’s best interests. The Federal Magistrate found in favour of the father and made orders that the child spend “substantial and significant time” with the father. The mother appealed the decision to the Full Court of the Family Court of Australia.

The primary issue for the Full Court was whether the Federal Magistrate had erred in his approach to determining the application for parenting orders. In particular, the Court considered whether the Federal Magistrate had erred in finding that the proposed relocation would adversely affect the child’s relationship with the father, and whether his Honour had erred in the weight given to the mother’s happiness and financial security. The Court also considered whether the Federal Magistrate had erred in his consideration of the appropriate parenting orders to be made, having regard to the objects and principles of Part VII of the Family Law Act.

The Full Court found that the Federal Magistrate had carefully weighed all relevant evidence and had considered all relevant factors before reaching his conclusions. The Court found that the Federal Magistrate’s approach to the determination of the application for parenting orders was consistent with the suggested approach for consideration of an application for parenting orders involving international relocation explained in McCall & Cark [2009] FamCAFC 92. The Full Court found that there was no appealable error established in the Federal Magistrate’s determination. The Court also found that there was no error in the weight given to the mother’s happiness and financial security.

The Full Court dismissed the appeal and made no order as to costs. The Court varied the orders made by the Federal Magistrate to provide that, in the event the child is spending time with the father on Mother’s Day, such time be suspended, and that the child spend a period of not less than four hours with the mother on Mother’s Day.