Monday, 29 June 2009

Have evidence of why you need to relocate: Family Court

The need to have evidence to justify a proposed relocation was amply demonstrated in the recent Full Court of the Family Court case of Olney and Lander. The case also demonstrated the requirement of the Family Law Act of the friendly parent concept.

The mother unsuccessfully appealed from a decision of Federal Magistrate Wilson, whose orders about a 3 year old daughter provided that the parents share equal parental responsibility for all major long term issues affecting the welfare of the child and that the father spend time with B in a fortnightly cycle, two nights in one week and three nights in the other until she commenced school, when she would spend two nights with him in one week and four nights in the other. The last order provided:

That the mother be restrained from relocating the residence of the child [in Brisbane] to [the Sunshine Coast], or to a distance greater than 20 kms from the father’s current residential address, without the written consent of the father, or an order of the court first obtained.

The mother wanted to move to the Sunshine Coast for the better lifestyle, because of her relationship with a Mr G, and because her elderly mother lived there.

Lack of evidence

It was stated either by Wilson FM or the appeal court about the lack of evidence, which demonstrates that the matter should have been more thoroughly prepared for trial:

  1. There was no evidence that [Mr G] was able, or willing, to financially support the mother and her two children.
  2. Although the mother said that her employer was supportive of her wish to move, there was no evidence that the mother could obtain suitable employment at the Sunshine Coast. The mother has been with her employer for five years. Her employer apparently has regional offices at Caboolture and North Brisbane’s Bayside area. The mother says she has discussed the move with her employer and has been informed that it would support her in her move. She has been informed that staff with her level of experience are in demand in the company’s northern offices. Curiously, no evidence was called from the mother’s employer. That is a telling omission. Even if the mother could secure employment at one of the other offices of her current employer it seems that considerable travel would be involved.
  3. There was no evidence “from the maternal grandmother as to her availability or willingness to assist” the mother with the care of the child, especially as the grandmother would be living 45 minutes drive away from where the mother proposed to live.
  4. There was no evidence led by the mother that if she were not permitted to relocate with the child, her parenting skills and abilities would be adversely affected.
  5. There were no submissions seeking to demonstrate that, because of the primary attachment between mother and child, all other factors, including the relationship between father and child, were overwhelmed to the extent that relocation should be permitted.
  6. There was no development of the contention of the importance of the relationship between the child and her half-brother by way of argument about the comparative importance of that factor and other factors.
  7. Although it was suggested that the father could easily move to the Sunshine Coast and obtain employment there, the mother offered no evidence on that point. In fact the evidence of the father was that his work was primarily in Brisbane and that his partner's work was primarily on the Gold Coast.

Friendly Parent Concept

Wilson FM stated:


Further, in her affidavit evidence, the mother said:
“If I am not able to move, I would find it very difficult to accept and believe it may damage my relationship with [Mr Lander] further as I believe I will find it difficult not to hold [Mr Lander] responsible.”...


In my consideration, the desire of the mother to relocate demonstrates a certain unwillingness of the mother to facilitate and encourage a close and continuing relationship between the father and his daughter. The mother was dismissive of the father’s objections to her relocation. ...


The mother’s proposal would see the father spend alternate weekends with his daughter. Although more time could be fashioned in orders leading up to [B] commencing her formal education, the effect of the mother relocating would be to eventually to revert to alternate weekend and school holiday time. In my view, that is not in [B]’s best interests.


If the mother relocates, it will effect a change in [B]’s circumstances. The effect of her separation from her father, and paternal grandmother, will affect the meaningfulness of their relationship. Whilst I accept that a meaningful relationship does not necessarily equate to the amount of time involved, or the frequency of contact, in the case of a young child like [B], where the relationship with both parents is being nurtured, these are important factors.


If the mother relocates to [the Sunshine Coast], that will impose practical difficulty and expense on the continuation of the relationship between [B] and her father.

As the Full Court went on to say, the difficulty may not arise now, but may arise when the child would go to school and how a shared or significant arrangement could work with all the travel involved.

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