In the recent case of Molloy & Reid  FamCAFC 89 (11 May 2018) the Full Court of the Family Court (Thackray, Murphy & Aldridge JJ) heard the mother’s appeal against an order made by Tree J (primary Judge) in 2010 refusing her permission to relocate the parties’ children aged, [B] aged 10, [C] aged 9 and [D] aged 6 respectively to New Zealand. The primary Judge also made an order for equal shared parental responsibility and that the children live with the mother, but spend time with the father four nights per fortnight (with an extra night per fortnight for the eldest child).
Trial Court Analysis
A Family consultant provided a report to the Court recommending, inter alia, that the Mother not be permitted to relocate, but that the children continue to live with her and spend time with the Father each fortnight: six nights for B, four nights increasing to five for C, and three nights increasing to four for D.
The primary Judge’s reasoning included assessing the effect relocation would have on the Mother’s emotional and financial circumstances and her parenting capacity.
The primary judge considered the following in favour of the Mother relocating as follows:
• The Mother would have improved emotional support in New Zealand from family and friends;
• The Mother would have better prospects of employment in New Zealand;
• The Mother was likely to experience reduced anxiety and stress because of the diminished prospect of inadvertently having contact with the Father; and
• The Mother will likely perceive that she has been able to choose where she lives rather than being “trapped” in a place which, according to her evidence, she only agreed to ever live in for a period of two years.
The primary judge went on to consider the points that tended against relocation:
• It is likely to substantially diminish the children’s relationship with the Father, and cause them, at least, short term grief and loss;
• B’s weekly face-to-face time with the Father, focused on sport, would fall away;
• It would not permit the children to have a relationship with the Father that would involve spending substantial and significant time with him;
• The Mother had been able to cope with living in Town O for the past ten years despite the stress it caused her and that it would not be reasonably practical for the Father to relocate to New Zealand;
• Even though the Mother experienced difficulties in communicating with the father, the primary Judge found that their communication was adequate for an order of equal shared parental responsibility.
The primary Judge, not without considerable hesitation, weighed those factors as tipping the balance against permitting relocation. The primary Judge found that although the Mother was unsatisfied, anxious and suffered stress, nonetheless she was able to cope.
The primary Judge also found that the cost of improving the Mother’s situation was to dramatically diminish the children’s relationship with the Father. The Primary Judge concluded that the best interests of the children were the paramount consideration.
The Mother’s Appeal
The Mother contended that the primary Judge’s reliance on the previous case, Morgan & Miles, was erroneous as he focused too heavily on going through a “checklist” of considerations. The checklist was a list of eleven issues the trial judge examined to determine the case outcome.
The Mother believed that the primary Judge limited the matter of the reasonable practicality of relocation to two checklist headings, therefore preventing a well-rounded approach.
Additionally, the Mother contended that the primary Judge failed to find that the Father had committed domestic violence against her. She further submitted that the primary Judge focused heavily on the ways the children’s relationship with their father would diminish should they move with their Mother to New Zealand, and Mother asserted that was an error of law.
Full Court Analysis
The Full Court stated that the identification of issues was crucial to the adjudication of every case and their exposition can usually be helpful. It was, however, crucial that the issues were framed correctly and with precision and particularity.
The Full Court noted that the primary Judge’s findings had been made against the background of the Mother’s claims that the Father had engaged in family violence. It was further noted that the primary Judge had made no explicit finding in respect to the Father engaging in such violence.
Despite the allegations of domestic violence in circumstances where notwithstanding the Mother’s anxiety and discomfort in the presence of the Father, it was the position of both parents that an order for equal shared parental responsibility was common ground.
The Mother conceded that the relocation would impact on the children in her affidavit few weeks before the trial. The Full Court found that there was no error in the primary Judge reciting, and giving weight to, a concession made against interest by a party in their sworn evidence.
The Full Court ultimately found that there was no merit in any grounds of the appeal and the appeal was dismissed.