Wilburn & Wilburn - [2020] FamCAFC 191

FAMILY COURT OF AUSTRALIA

WILBURN & WILBURN

[2020] FamCAFC 191

FAMILY LAW – APPEAL – RELOCATION – Where his Honour did not require the appellant to demonstrate good or compelling reasons for her proposed move – Where consistent with authority his Honour reached his conclusion on the basis of an assessment of what was in the best interests of the children in the context of the competing proposals – Where his Honour did not fail to consider the advantages and disadvantages of the respective proposals of the parties – Where his Honour determined that the proposed move was not in the best interests of the children – Where the order made here is not an order which can be described as “coercive” requiring rare or extreme circumstances to be established – Where there was no obvious viable alternative arrangement for his Honour to consider – Where the reasons were not inadequate – Where none of the grounds of appeal have merit – Appeal dismissed.

Family Law Act 1975 (Cth) ss 60CC, 114(3)

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458
Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16;
Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152
Sampson and Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365
Taylor and Barker (2007) FLC 93-345; [2007] FamCA 1246
U v U (2002) 211 CLR 238; [2002] HCA 36

APPELLANT:

Ms Wilburn

RESPONDENT:

Mr Wilburn

FILE NUMBER:

DGC

1426

2018

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

7 August 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide via video-link

JUDGMENT OF:

Strickland J

HEARING DATE:

13 March 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

6 August 2019

LOWER COURT MNC:

[2019] FCCA 2131

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr R Smith

SOLICITOR FOR THE APPELLANT:

Macpherson Kelley

COUNSEL FOR THE RESPONDENT:

Mr Laidlaw

SOLICITOR FOR THE APPELLANT:

Tyler Tipping & Woods

Orders

The appeal be dismissed.
There be no order as to costs.

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 by this Court under the pseudonym Wilburn & Wilburn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
ADELAIDE

Appeal Number: SOA 53 of 2019
File Number: DGC 1426 of 2018

Ms Wilburn

Appellant

And

Mr Wilburn

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal filed on 11 February 2020, Ms Wilburn (“the wife”) appeals against final parenting and property settlement orders made by a judge of the Federal Circuit Court of Australia on 2 September 2019. However, at the hearing of the appeal the wife abandoned all grounds of appeal against the property settlement orders.
The parenting orders relevantly provided for the parties to have equal shared parental responsibility for X born in early 2012, Y born in early 2012 and Z born in early 2014 (“the children”), for the wife to be restrained from relocating the residential address of the children, for the children to live with the wife, and for the children to spend time and communicate with the husband.
Although the appeal is against all of these orders, it is readily apparent from the grounds of appeal that the primary complaint of the wife relates to the injunction restraining her from relocating the residential address of the children.
The husband opposes the appeal.

Relevant Background

At the time of the hearing below, the wife was aged 36 years and the husband 41 years.
The parties commenced to live together in May 2005, and they married in 2008. Separation occurred on 15 October 2017.
There are three children of the marriage as identified above.
The parties have lived, owned property and worked in the Town D/Town E area during their relationship, and they raised their three children in that region. The region is about 110 kilometres from Melbourne, and it takes approximately 90 minutes to drive that distance, depending on traffic and the time of day.
The husband works full-time as a professional in Town E, and he earns approximately $150,000 per annum.
The wife operates a business as a professional and earns approximately $100,000 per annum.
The proceedings commenced with the husband filing an Initiating Application in the Federal Circuit Court of Australia on 1 May 2018.
A family report prepared by a family consultant on 22 August 2018, was provided to the court.
The wife’s proposal was to relocate with the children to Suburb HH, a suburb of Melbourne, where the children would live with her and spend time with the husband.
The husband’s proposal was for the children to remain in the Town D/Town E area, and an equal shared care arrangement be put in place.

The Appeal

There were seven grounds of appeal raised in the Amended Notice of Appeal. However, I confirm that at the hearing of the appeal, the wife abandoned Grounds 5 and 6, and indicated that Ground 7 was not pursued in relation to the property settlement orders made by his Honour. That left the grounds of appeal in relation to the parenting orders.

Ground 1

The learned trial judge erred in requiring the wife to demonstrate good reasons to relocate.

There is no question that where relocation is an issue, the party seeking to relocate is not required to demonstrate good or compelling reasons for the move.
The focus cannot be on the reasons or motives of that party, but rather on what is in the best interests of the children (AMS v AIF (1999) 199 CLR 160 per Haynes J at [217] – [219], and per Kirby J at [192]).
Here, the assertion is that his Honour focussed his enquiry on the wife’s reasons for moving, instead of on which of the competing proposals were in the best interests of the children.
In support of that assertion the wife highlights part of what his Honour said in his conclusion as to the issue of relocation, and specifically at [131] – [133] as follows:
131.Further I do not accept that if the mother does not move to Melbourne she will be an unhappy person and therefore the interests of the children will suffer as a result. The mother, in her evidence, said that she was a positive person and that whilst she would not be happy if she was prevented from relocating the children to Melbourne, she would present a positive face. She said that she would be able to shield the children from her disappointment but noted that the children would still be aware of what goes on.
132.In circumstances where the mother’s proposed reasons to relocate (being purported financial benefits, a desire to work and socialise with like-minded professionals, and achieve a better work-life balance) are not supported by the evidence before the Court (particularly in relation to financial benefits and work-life balance), then the reasons for the relocation fall away to a great extent. As there were no other reason were advanced for her relocation the Court finds that the mother’s proposed relocation is not in the best interests of the children.
133.I do not make this finding because the mother has not demonstrated compelling reasons to explain the move. I make the finding because the reasons that the mother put for the move are not established to the satisfaction of the Court and that if she did move, that move would not be in the best interests of the children. I do not accept the premise that because the mother moves to Suburb HH and sets herself up in accordance with her proposal that she will therefore be happy and the children will be happy. I regard that analysis as simplistic and striking it its lack of consideration of the father’s role in ensuring that the best interests of the children are met.
Those paragraphs, and in particular [132] would prima facie seem to indicate that his Honour did erroneously focus on the reasons of the wife for moving, and require her to demonstrate good or compelling reasons for that move. However, that paragraph must be read with [133], where his Honour explained that he was not in fact making the finding “because the [wife] has not demonstrated compelling reasons to explain the move”, but even more importantly [132] cannot be read in isolation, and it is necessary to consider the entirety of his Honour’s reasons. When that is done, it can be seen that his Honour made no error in his approach.
His Honour first identified the competing proposals of the parties (at [17] – [18]). He then recorded (at [21] – [65]) the evidence of the parties in relation to the parenting dispute, and because of the importance of the issue of relocation, his Honour set out in detail the wife’s evidence as to her proposed move. Necessarily that involved his Honour recording the wife’s reasons and motives for wanting to move.
His Honour then referred to the content of the family report, including the recommendations of the family consultant, and to the evidence given by that consultant. His Honour then recorded his conclusions as to that report and the consultant’s evidence (at [66] – [82]).
Next, his Honour set out the principles to be applied where relocation is an aspect of one of the party’s proposals (at [83] – [86]), and no challenge is made to that summary in this appeal.
His Honour then addressed (at [87] – [129]) the best interests of the children by reference to the relevant subsections of s 60CC of the Family Law Act 1975 (Cth) (“the Act”). In considering s 60CC(3)(d), and specifically, the effect in any change of the children’s circumstances, his Honour found as follows:
102.If the mother relocates to Melbourne with the children, this will significantly impact their relationship with their father and not be in their best interests. I do not regard the move from Town D to Melbourne as being one of little consequence.
103.The move will result in the children spending substantial time travelling and remove the children from the town and their family connections within that town. The children, if in Melbourne, will not be physically close to their father and consequentially, significantly impact their relationship. Nor will they be as close to their grandparents. The travel time will, certainly on a Friday evening, be well in excess of 90 minutes. The change is likely to lead to the children spending less incidental time with the father and the paternal grandparents. Given the anxiety that the older children have exhibited, this change may further negatively impact them.
Pausing there, the husband submits that his Honour’s finding at [87] that “[b]oth parents had meaningful relationships with the children and would continue to do so in each of the proposals before the court”, did not make its way into his Honour’s consideration of the issue of the relocation at [133], and the later findings at [102] and [103] that the relocation will significantly impact the children’s relationship with the husband, are inconsistent with that initial finding, and cannot be reconciled. However, the extent of any relationship can always be a matter of degree, and to say that the relocation will have a significant impact on that relationship is not necessarily inconsistent with a finding that a meaningful relationship would still exist.
Then, to continue, as part of his Honour’s consideration of the best interests of the children in the context of the proposals of the parties, his Honour proceeded to address, at various points, the wife’s case insofar as she advanced particular reasons for the move she proposed.
His Honour was not in error in doing so. The wife chose to advance the reasons, and thus it fell to his Honour to examine them in the context of what was in the best interests of the children.
As was said by the majority of the Full Court in Taylor and Barker (2007) FLC 93-345 at [59]:
59.A further submission made in support of Ground 5 was that it was an erroneous approach for his Honour to consider as a separate issue (towards the conclusion of his judgment), the mother’s reasons for wishing to move to North Queensland and the consequences for her of not being able to move. These are matters which it will be necessary for us to consider in the context of a separate ground of appeal which challenges the weight which his Honour accorded to those matters. But we can say at this point that we see no error in his Honour having considered these matters in the way in which he did towards the conclusion of his judgment. They were certainly matters which he was required to consider, and it is difficult to see in what other context in his judgment, they might have been more appropriately considered.
And, the Full Court said this in Malcolm & Monroe and Anor (2011) FLC 93-460 at [81]:
81.We generally and respectfully agree with Boland J’s reasons aforementioned. What reasons a parent may declare for relocation may inform the inquiry about whether the proposed relocation is a proper exercise of parental responsibility. It may be that a parent, while ostensibly holding fast to a commitment for a child to have a meaningful relationship with the other parent, decides that the child’s overall best interests will be best met if he or she is permitted to relocate. There may be significant disagreement about whether the parent proposing to relocate is correct or incorrect in determining that balance. And a Court may have to make the decision if the parents cannot agree in the circumstances. But in order to examine the basis of the exercise of parental responsibility, a judicial officer should take notice of the reasons proffered by a parent for the relocation. A frivolous or whimsical reason may indicate a possibly unstated and underlying desire to move the child as far as possible from the other parent.
Thus, at [104] – [112] his Honour determined that the wife’s proposal for employment in Melbourne, and the desired work/life balance, was not achievable. And at [124] his Honour found that he did not accept that the husband had engaged in a campaign of vilification such that the wife was compelled to leave the region.
The evidence simply did not support the expressed reasons promoted by the wife for the move.
To complete this consideration of his Honour’s reasons, his Honour set out his conclusions regarding the relocation aspect of the wife’s proposal, not just from [131] – [133], but from [130] – [134].
Importantly for this ground of appeal, his Honour said this at [130]:
130.On the basis of the evidence before the Court, I do not accept that the mother’s proposal to relocate to Melbourne is in the children’s best interest. The children currently have the benefits of living close to family, grandparents and cousins and it seems that the older children are well-settled at their local school.
And, this is followed by what his Honour said in [131] set out above.
In the last sentence of [132] his Honour perhaps employed some unfortunate expressions, which clearly have informed this ground of appeal, but given the content of [133], it is readily apparent that consistent with authority, his Honour has reached his conclusion on the basis of an assessment of what is in the best interests of the children, in the context of the competing proposals. That is amply confirmed by an analysis of the entirety of his Honour’s reasons.
It is also instructive to note that throughout these reasons his Honour recited on no less than four occasions, the principle that an applicant does not need to demonstrate compelling or good reasons to relocate the children (at [76], [84], [86] and [133]).
There is no merit in this ground of appeal.

Ground 2

The learned trial judge, in focussing his enquiry on the wife’s reasons for moving to Melbourne, failed to:

2.1 consider, or failed to adequately consider, the wife’s proposal to live in Melbourne; and

2.2 weigh the best interests of the child (sic) against the wife’s right to freedom of movement

I make two comments at this stage about this ground of appeal. First, it may seem that it is in effect a repeat of the complaint in Ground 1, but as I understand it from the wife’s summary of argument, the assertion here is that his Honour failed to consider the competing proposals of the parties, and specifically failed to consider the advantages and disadvantages of those proposals.
Secondly, as was conceded by counsel for the wife at the hearing of the appeal, it is not the case that a trial judge is required to “weigh the best interests of the [children] against [the applicant’s] right to freedom of movement” (my emphasis).
Where relevant, the right to freedom of movement can be just one of the factors to be weighed, together with all other relevant factors, in deciding what is in the best interests of the children where there is an issue of relocation (Bolitho and Cohen (2005) FLC 93-224 at [72]).
As for the first comment outlined above, I am not persuaded that his Honour failed to consider the advantages and disadvantages of the respective proposals of the parties. Indeed, as submitted by the husband in paragraph 23 of his amended summary of argument filed on 11 March 2020, nowhere in her summary of argument filed on 11 February 2020, did the wife identify any examples of an advantage, or a disadvantage, which his Honour failed to take into account.
That leads into the second aspect of this ground of appeal referred to above. Although reference to freedom of movement appears in his Honour’s recitation of the relevant principles to be applied (at [86]), the wife correctly asserts in paragraph 19 of her summary of argument, that it is not apparent that his Honour considered the wife’s “right to freedom of movement anywhere in the reasons for judgment”. However, what his Honour does consider is plainly informed by the respective cases of the parties, and this was not a factor that featured in the wife’s case.
Further, his Honour determined that the proposed move was not in the best interests of the children, and in the formulation by the High Court in U v U (2002) (2002) 211 CLR 238 of where the parental right to freedom of movement sits, it was said as follows (at [89]):
…whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent. …
Two further points helpfully made by the husband in paragraphs 32 and 33 of his summary of argument are first, given the evidence of the wife that she would not be “absolutely miserable” if not permitted to relocate the children, it would be an unacceptable elevation of the concept of freedom of movement to find his Honour erred in not deferring to the wife’s express preference. Secondly, his Honour was required to balance the relevant factors in circumstances where the wife’s express reasons for wishing to relocate were not supported by the evidence.
There is no merit in this ground of appeal.

Ground 3

The learned trial judge erred in principle in restraining the wife from changing the children’s address from the Town D/Town E area when there were no circumstances which were ‘rare’ or ‘exceptional’.

This is a ground which is misconceived.
The argument relies on what the Full Court said in Sampson and Hartnett (No. 10) (2007) FLC 93-350 in concluding that it was within power pursuant to s 114(3) of the Act to enjoin a party from relocating or to relocate, namely:
58.However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:
(i)the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and
(ii)in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent’s choosing.

However, two comments are made about what the Full Court there says. First, nowhere does the Full Court say that a coercive order can only be made where there are “rare and exceptional circumstances”. It simply says that the exercise of power will be “rare”, and “at the extreme end of the discretionary range” (at [83]), and that emphasises that the issues will always be the power to make the order the subject of consideration, the terms of the order, and the circumstances which must exist to justify that order.
It was the Full Court in Adamson & Adamson (2014) FLC 93-622 which introduced the requirement that there needs to exist “rare” or “extreme” factors that warrant the court exercising its discretion to make “coercive” orders, which the Full Court described as “orders requiring a parent to relocate so as to continue to be the primary carer of their child/ren” (at [37] and also see [53]).
It is entirely understandable that when faced with making such orders, the court will need an exceptional basis for doing so.
Secondly, the order here is not an order which can be described as a coercive order that is made pursuant to a rare exercise of power.
As the wife concedes, there is a distinction to be drawn between an order directed at enjoining a parent, and an order directed at the child’s residence. The former is aptly described as a coercive order, but the latter is not, and the latter is what we have here. The exercise of power in these circumstances is certainly not “rare”.
The wife sought to equate the order here with a “coercive” order by suggesting that the reality of the order is “forcing the wife to discharge a role in circumstances not of her choosing” (Wife’s summary of argument filed 11 February 2020, paragraph 23). However, that description is to be found in cases where the order is for the parent to relocate (e.g. see Oswald & Karrington (2016) FLC 93-726), and not in cases such as this. There remains a clear difference as to how a court addresses a requirement to remain in an area, as opposed to a requirement to actually pack up and move.
It is beyond doubt that the circumstances here warranted the injunction made by his Honour, and there is no merit in this ground of appeal.

Ground 4

The learned trial judge erred in failing to consider, or failing to adequately consider, alternative arrangements to (sic) restraining the wife from changing the children’s address from the Town D/Town E area, particularly in circumstances where the distance of the proposed move by the wife was relatively short.

It is the case that his Honour did not consider alternative arrangements to the orders that he made, but that begs the question of whether there were viable alternative arrangements.
It is telling that none of any substance were raised by the wife. The best the wife could come up with in support of this ground is an exchange between his Honour and counsel for the wife, instigated by his Honour (and not the wife), in relation to how travel on a Friday could work given the husband’s hours of employment. In response to his Honour’s query of “so what are you suggesting”, counsel for the wife proposed travel on Friday be shared with the parties meeting half-way (Transcript 2 April 2019, p.377 lines 41-45). Then, after further queries from his Honour, counsel obtained instructions and proposed that the wife do the travelling on the Friday and the husband do the travelling on the Sunday, or on the Monday.
However, plainly that did not resolve any of the disadvantages of the wife’s proposal (e.g. as described in [103]), and thus cannot be described as an alternative arrangement to avoid the order his Honour did make.
In the absence of any obvious viable alternative arrangements, there was nothing for his Honour to consider, and this ground of appeal has no merit.

Ground 7

The learned trial judge gave inadequate reasons.

The error asserted here is that his Honour’s reasons were inadequate in exposing how his Honour arrived at the conclusions that he did in making the parenting orders. However, as is apparent from the wife’s summary of argument, this represents the same challenges as raised in Grounds 1, 2 and 3. Having found no merit in those grounds, this ground necessarily falls away, and it too has no merit.

Conclusion

Having found no merit in any of the grounds of appeal, the appeal must be dismissed.

Costs

Ultimately, in the event that the appeal was dismissed, no order for costs was sought by the husband.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 August 2020.

Associate:

Date: 7 August 2020