The recent decision of Gilmour & Lennon  FamCAFC 166 concerns the impact that child relocation can have on a child’s relationship with the separated parent and the consideration of the practical difficulties faced by the parents.
On 8 July 2008 final parenting orders were made for the child to live with her mother and have equal shared parental responsibility. The child was to spend time with the father each alternate weekend with changeover occurring at a nearby town in New South Wales.
In mid-2014 the mother planned to move the child to the Central Coast to be closer to her family, for better work opportunities and for better educational opportunities for the child. She wrote a series of letters to the father explaining her reasons for the move and proposing arrangements for him to spend time with the child. The father repeatedly declined to agree. In response to the mother relocating the child to the Central Coast the father filed an Initiating Application seeking the return of the child and an interim order restraining the mother from relocating the child without his consent.
Dunkley J made an interim order returning the child from the Central Coast. His Honour in making this interim order considered the risk that if the child continued to reside in the Central Coast her relationship with the father would deteriorate. He found that there was nothing to rebut the presumption in favour of equal shared parental responsibility. Furthermore, he considered the additional two hours of travel time the move imposed on the father to be significantly onerous.
The Family Court of Australia upheld Dunkley J’s decision. They refuted the mother’s ground of appeal that insufficient consideration had been given to the practical difficulties she faced returning from the Central Coast, considering 30 days to be a reasonable amount of time to facilitate the move.
The mother submitted that the Dunkley J had not taken into account that responsibility for the financial support of the child fell almost exclusively on the mother. The Full Court found that given the lack of evidence before him it was unsurprising that he did not give the financial implications of the move significant consideration.
Another ground of appeal was that Dunkley J gave insufficient regard to the best interests of the child and too much regard for the increased travel time the move to the Central Coast would impose on the father. The Full Court did not accept that this was the case and noted that relying on the issue of weight of consideration is a very difficult manner for an appeal of interim orders to succeed.
The mother submitted that further evidence could be adduced that would have produced a different result. The Full Court found that the evidence was likely to be relevant in making final orders but did not establish that the interim orders were erroneous.
The Full Court concluded that Dunkley J’s interim orders were open to him given the evidence that was before him. The appeal was dismissed with the mother being ordered to pay the father’s costs of the appeal.
Boyce Family Law
Divorce Lawyers Sydney