By Gianna Huesch
It’s highly unusual for a parent to seek relocation with their child to an as-yet-unknown destination, but that is exactly what recently happened in a case heard in the Family Court in Sydney.
In the matter of Wendland & Wendland (court-appointed pseudonyms), the full bench of the Family Court heard an appeal by the four-year-old girl’s father against the decision of the primary judge to allow the child to relocate with her mother to “wherever the mother is posted by the Australian Defence Force (ADF)”.
The father objected to the court giving the mother what amounted to a “blank cheque” to relocate anywhere within Australia, depending on where the ADF decided to post her in future. But his appeal was dismissed by the appellate judges who ruled that the orders and findings made by the primary judge were open to be made on the evidence and that no errors had been made by the judge.
The couple had met when the mother was posted to their current location, where they then married and had the child, before separating after about two years. The mother had then become the girl’s primary carer while the father enjoyed substantial time with his daughter.
The case was made unusual by the nature of the mother’s career being with the ADF for almost two decades, since she was 20, and how this lengthy tenure had effectively shaped the mother’s identity. The primary judge had noted:
“One of the big factors I have looked at is that the mother has come from a prejudiced upbringing. Through sheer willpower, she has forged a career with the ADF to the extent that the ADF is now part of who she is. The ADF was a part of who she was when she met the father. The ADF was a part of who she was when she conceived [the child]. The ADF was a part of her when she gave birth to [the child], and the ADF is still part of her now as she continues to care for [the child].”
The father’s chief argument against relocation was that his relationship with his daughter would necessarily be diminished. But the primary judge referenced earlier decisions which found that “what the [family law] legislation aspires to is to promote a meaningful relationship, not an optimal relationship….While the relationship [between the father and daughter] will not be optimal, it will still be meaningful. This is in contrast to the relationship between the mother and [the child], which would change drastically if the mother were to leave the ADF and, in effect, change her very identity.”
The judge found that if relocation was not permitted, the child’s life would be significantly changed “because of the changes to the mother’s status and to her income”, given the mother had indicated she would give up her ADF career to remain as primary carer in the current location and would have difficulty transitioning to civilian employment.
The judge had also found that the mother was likely to facilitate maintenance of a meaningful relationship between the father and child, including offering to pay for the father to travel to the new location numerous times a year and even leaving her home to allow the father to stay there on those occasions.
Against the criticism of the breadth of the order, the judge had noted that given the likelihood of the mother being required to undertake future postings to new locations, a clear decision was required to avoid endless litigation being instituted on each potential new posting:
“This is a question that needs to be answered and answered now: is the mother permitted to relocate [the child] to wherever she is posted, or is [the child] to remain in [Town H]?”
The appeal judges found the primary judge had “correctly noted the wide nature of the proposed order” given likely future postings. They found that the primary judge did not err on findings such as that there would be a “profound effect on the mother and the child should the mother be required to give up her career with the ADF”:
“If the mother were to leave the ADF, I am of the view that it would change who the mother is. It is not simply a case of the mother facing unemployment and having to look for another job. It is actually changing the very being of who the mother is. Such a profound change in who the mother is would also result in a profound change for [the child].”
“As it is at the moment, the mother is a fantastic role model for [the child]. She is illustrating to [the child] that an individual does not have to succumb to their environment. An individual can rise above their surroundings and empower themselves. This aspect of the mother is a cornerstone of the relationship of the mother as with [the child].”
The mother had said in an affidavit, “Remaining in the [ADF] is ridiculously important to me…how I see myself…what I’m about,” and the primary judge had noted her “passionate involvement in her career”.
While the circumstances of the case are clearly quite unusual, it does highlight the way in which the courts will consider how relocation may impact on a parent’s career–and its relationship to the parent’s identity and how this may ultimately affect their capacity to parent–in determining the best interests of the child.
You can read the judgment here: http://www.austlii.edu.au/au/cases/cth/FamCAFC/2017/244.html
You may also like to read our previous blog on the subject of relocation: https://www.familylawincanberra.com.au/building-your-case-for-parental-relocation/
Do you need assistance with an application for relocation with your children, or alternatively, assistance with opposing your co-parent’s application for relocation? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400 for an initial no-obligation, cost-free consultation.
Please note that our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance.
