The decision of Brindle & Otto  FamCAFC 164 concerns an appeal of a decision by Judge Dunkley on 20 February 2015 to return the six children of the parties from Melbourne to which the mother had recently moved them. Dunkley J was satisfied that if the children continued to live in Melbourne, they would not be able to spend time with the father and their relationship with him would cease and ordered they be returned.
Dunkley J appreciated that the mother was in a difficult financial position and accepted that the move to Melbourne reduced her rental costs. However, he was concerned with the impact on the father’s relationship with the children. While the move may have improved the living circumstances of the children it was nevertheless in their best interests to have a continuing relationship with their father.
Since the move to Melbourne the father and his children had only intermittent contact via Facebook and he noted that the father did not have the financial means to visit them in Melbourne. Dunkley J concluded “an order that the mother return the children to live in Western Sydney is, on the balance, in the children’s best interest as the best means of enabling those children to have any sort of relationship with their father.”
The mother challenged this decision on a number of asserted errors. She asserted that Dunkley J had proceeded on an erroneous basis regarding the father’s commitment to assisting her with the care of the children. She also argued that he made an inconsistent finding that the move had improved the children’s living circumstances and yet “the children achieved little benefit by moving”. Dunkley J also, she argued, failed to consider the practical consequences of not having access to family that consistently helped her care for the children in Melbourne.
The Full Court found that Dunkley J failed to take into account that the mother had sought orders that the father spend significantly more time with the children than what he proposed. His Honour’s finding that the children achieved little benefit by moving cannot be reconciled with the fact that the mother paid $300 less rent per fortnight in Melbourne and received further financial assistance from her family.
Furthermore there was a failure to consider the mother’s need for more assistance than the three hours per week that the father proposed. This practical assistance was available only in Melbourne where the mother had access to her family.
In their judgment the Full Court noted that given the parlous financial circumstances of the parties the less burdensome financial circumstances in Melbourne was a significant factor in favour of permitting the relocation. The lack of willingness on the part of the father to offer the level of assistance that was available in Melbourne also weighed heavily in the mother’s favour.
Given that Dunkley J had not considered these highly relevant matters the Full Court ruled that appellate intervention was required. The proceedings were remitted for a rehearing by a judge other than the primary judge.
Boyce Family Law
Divorce Lawyers Sydney