In the recent case of Wendland [2017] FamCAFC 244 (21 November 2017) the Full Court of the Family Court of Australia (Ainslie-Wallace, Ryan & Aldridge JJ) heard the father’s appeal against Judge Vasta’s order that permitted the mother (who had worked for the Australian Defence Force for 18 years since she was 20) to relocate their 4 year old child to wherever she was posted. When the order was made the child had been living with the mother in Town H in Queensland and it was not known if, when or where the mother might be posted.

Father’s Submission

The father argued that a posting elsewhere was “neither likely nor imminent” so that the application was “premature” and alternatively that her application should be dismissed because “until the location of any posting was known informed decisions could not be made as to what was in the child’s best interests”. By the time of the appeal, however, the mother had been posted to another State.

The father submitted that the following demonstrated the unreasonableness of the order:

a) the child had lived her whole life in Town H;
b) the child was spending regular time with the father every week; and
c) the writer of the Family Report did not support the child relocating.

The Full Court’s Analysis

The Full Court noted that during the relationship the child was placed in on-base day care where the mother was working and the paternal grandmother also took care of the child. The father continued to work full-time.

The primary judge found that notwithstanding the birth of the child the parties planned to move as a family in the event the mother was required to work elsewhere. The orders at first instance provided for the mother to inform the father of any changes that would make it more difficult for the child to spend time with him and she was required to consult the father about any exercise of their equal shared parental responsibility.

Considering the Family Report

The Family Report writer had opined that without knowing the proposed destination the effect on the relationship between the father and the child could not be determined and therefore he would recommend against the order proposed by the mother.

The conclusions of the primnary judge took into account the evidence of the family report writer and in particular his opinion that a relocation would diminish the relationship between the child and the father and paternal grandmother. On balance, his Honour considered that the child’s best interests were served by maintaining her relationship with the mother as a member of the ADF.

The father submitted that the decision was outside the proper exercise of the judge’s discretion. The Full Court did not agree. As the primary judge had stated, this was not an easy decision to make and was finely balanced. The Full Court considered that the findings made by his Honour and his order permitting the mother to move the residence of the child were open on the evidence. The three matters identified by the father could not simply be taken into account on their own. As the primary judge’s consideration showed, the matter was much more complex than that.

It was submitted that the order simply but erroneously gave the mother a ‘blank cheque’ as to the child’s future and that his Honour erred by not making orders that would facilitate the maintenance of the child’s relationship with the father.

Assessment of Findings

The primary judge had correctly noted the wide nature of the proposed order and the fact that the mother was likely to be subject to further postings. As his Honour identified, s 60CC(3)(l) of the Family Law Act 1975 (Cth) (“the Act”) requires the court to consider ‘whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child’. After undertaking that consideration in conjunction with other considerations, his Honour was of the view that the order he made was supported by s 60CC(3)(l).

The primary judge was not obliged to accept the opinion of the family report writer. It was for the trial judge to determine the weight to be given to it: see Muldoon & Carlyle [2012] FamCAFC 135

The primary judge had considered both the close and meaningful relationship presently existing between the child and the father and the fact that any relocation of the child would diminish that relationship.

It was entirely incorrect to say that the primary judge did not consider the impact of the relocation on the child and her relationship with the father.

The Full Court was unable to see that his Honour made any finding that the child was primarily attached to the mother. Indeed, the findings would point to the contrary – namely, that the child has a meaningful relationship with both parents who have a committed involvement with her and that she also has a very close relationship with the paternal grandmother. This was, in effect, an acceptance of the family report writer’s opinion that the child had multiple attachments but that he could not presume to identify where the greater attachment or dependency lay.

It was obvious that as the site of any proposed relocation was unknown the precise practical difficulty and expense of the father spending time with the child could not be known. The primary judge dealt with this by assuming that for the child to spend any time with the father air travel would be required.

The primary judge found that the order proposed, notwithstanding its breadth, permitted the child to spend time with the father in a manner that was reasonably practicable and could be afforded. The Court considered that this finding was open on the evidence.

The Court’s Conclusion

For the reasons set out by his Honour, weight was given to the family report writer’s opinion, but weight was also given to the mother’s freedom to pursue her career and to live where she wished and, most importantly, the effect on the child if the mother were forced to abandon her career and remain living in Town H. Significant weight too was given to the finding that in the event of a relocation the child would still maintain a meaningful relationship with the father, albeit one of a different nature.

The father’s appeal was dismissed with no order as to costs.

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