In Blanding & Blanding  FamCAFC 21 the Full Court of the Family Court of Australia considered an appeal by the father in relation to the Orders made by a trial judge in the first instance refusing the father’s application for equal time and granting the relocation application in favour of the mother to allow her to relocate with the three children of the relationship to Central Coast, in the circumstances where all of the children were mostly unsupportive of the relocation.
The trial judge’s decision to make the Orders in the first instance was largely based having regard to the section 60CC considerations of the Family Law Act 1975 (Cth), which sets out factors the Court is required to consider when determining the best interests of the children.
Judge Brewster was of the view that there were 10 reasons that would be disadvantageous to the father and children if he granted the relocation order, as follows:
The reduced time the father would spend with the children,
The travel and accommodation costs incurred by the father to spend time with the children in the Central Coast,
The fact that in Sydney they would stay at the father’s home, but in the Central Coast they would live in a rental property,
The father would not be able to be so heavily involved in the children’s schooling and sporting events,
The children would be separated from their extended family,
The children would have to change schools,
The children would not see there Sydney friends regularly and may lose contact,
The children expressed to their counsellor that they were essentially unsupportive of the relocation, which one would expect to be an important consideration given the children’s age.
he children would be exposed to an untested arrangement if they were to share the residence with the mother’s new partner, and
There would be significant travel time between Sydney and the Central Coast.
Notwithstanding the above, His Honour then provided essentially two main reasons as to why he would grant the mother’s relocation application, being:
The financial advantage that the mother would make by making the move, and
The unhappiness and frustration which the mother would feel if she could not pursue her relationship with her new partner. The Judge noted that this unhappiness and frustration would “undoubtedly rub off on the children and ... have an effect on her parenting capacity” and would also be “extremely resentful of the father and see herself as trapped by him...”.
His Honour considered the impact of not granting the application for relocation to the mother and found that the above 2 factors outweighed the disadvantages of the relocation for the children. Accordingly, His Honour concluded that the relocation would be in the best interests of the children.
The Full Court of the Family Court considered whether or not the trial judge gave too much weight to the issue of the mother’s happiness and her financial circumstances.
Notably, AINSLIE-WALLACE & BERMAN JJ made the following observations and findings in relation to the issue of the mother’s happiness:
There was thus ample evidence on which his Honour could conclude that the mother’s happiness in not relocating would not only affect her but also the children. We do not then accept the submission that this was a factor of no relevance to his Honour’s determination.
This ground devolves to an argument that his Honour apportioned disproportionate weight to this matter against the other countervailing considerations. As his Honour’s reasons make clear, this was not the sole basis for his determination that the order sought by the mother should be made. However, in his view, it was the most important. The weight or importance to be placed on evidence is a matter exquisitely within the preserve of the trial judge and we are not satisfied that in giving it the weight he did, his Honour erred.
It is important too to consider the contextual evidence of the parties’ relationships with the children. It was uncontentious that because of the father’s mental illness and alcoholism, he had not always been as involved in the lives of the children as he was in the relatively recent past. Indeed Dr R commented that it has only been in the last three years that the father’s relationship with the children has improved and that he was concerned that the father may be at risk of relapsing if he becomes overly stressed, for example due to juggling the demands of caring for the children, work and managing his mental health.
Given his Honour’s findings about the importance of the relationship between the children and the mother, specifically that she had been their primary carer, as well as the strong recommendation of the single expert that she remain so, his Honour’s consideration of the mother’s happiness is thrown into clear focus.
We find no error in his conclusions in this regard.
The Full Court ultimately found that none of the father’s grounds for appeal could be established and dismissed the appeal with the father being ordered to pay the mother’s costs related and incidental to the appeal.
The Blanding case clearly demonstrates the high degree of complexity and nuance often seen in relocation matters. It also shows that the children’s views would be just one of the many factors the Court is required to consider in making its decision.
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