Successfully appealing against a relocation order

The recent matter of Loverdos & Bonner (2022) FedCFamC1A 174, saw a father successfully appeal a primary judge’s orders that allowed the mother to relocate from Sydney to Brisbane.

More on that later, but first, what is the law around relocation?

There is no specific section of the Family Law Act that refers to the difficult subject of relocation. Ultimately, relocation matters are decided according to the “best interests” of the children.

However, there is a significant body of case law that has been developed over the years by the Courts relating to child relocation cases. There have also been legislative changes which have impacted child relocation cases. From the case law and legislative changes we now have what could best be described as formulated guidelines and approaches to be applied in relocation cases.

The 2000 Family Court decision of A v A: Relocation Approach and the 2010 High Court decision of MRR v GR are two of the leading relocation cases.

In A v A: Relocation Approach, it was held that:

• The Court cannot determine the issues in a way that separates the issue of relocation from that of residence and the best interests of the child.
• Compelling reasons for and against the relocation need not be shown.
• The best interests of the child are to be evaluated by taking into account various considerations including the legitimate interests of both the resident and non-resident parent.
• Neither the applicant nor respondent bears an onus. That is, there is no presumption that relocation will be allowed or will not be allowed that one parent has to overcome.
• Treating the welfare or best interests of the child as the paramount consideration does not oblige a court to ignore the legitimate interests and desires of the parents. If there is a conflict between these considerations, priority must be accorded to the child’s welfare and rights.
• If a parent seeks to change arrangements affecting the residence of, or contact with the child, he or she must demonstrate that the proposed new arrangement is in the best interests of the child, even if that new arrangement involves a move overseas.

In MRR v GR:

1. The mother, father and their young child moved from Sydney to Mt Isa in regional Queensland for the father’s work. The parents separated and the mother sought to return to Sydney. The primary Judge ordered that the mother remain in Mt Isa with the young child. The mother appealed the primary Judge’s decision. The appeal was dismissed by a Full Court of the Family Court of Australia. The mother then appealed to the High Court.
2. The High Court held that an equal time arrangement was not reasonably practicable, given:
   1. The mother’s requirement to live in a caravan park while in Mt Isa (due to the unavailability, long waiting lists, and expense, of rental accommodation).
   2. The mother’s limited opportunities for employment in Mt Isa and the large disparity in income earning capacity while the parties both lived in Mt Isa.
   3. The mother’s isolation from her family in Sydney.
3. The High Court ordered that:
   1. The mother’s appeal be allowed.
   2. The decisions of both the Full Court and primary Judge be set aside.
   3. The matter be remitted to the Federal Magistrates Court (as it then was) for rehearing.
4. In the end, the rehearing did not proceed because the mother elected to remain in Mt Isa because she had repartnered with someone from Mt Isa in the time between the Family Court decision and High Court appeal.

In the successful relocation appeal of Loverdos & Bonner:

1. The parents had 2 children. The first child was born in 2015 and the second child in mid-2017. The parents separated in early 2017, prior to the birth of their second child.
2. The mother commenced a new relationship in February 2017. Her new partner lived in Brisbane.
3. At the hearing before the primary judge the father sought orders that would prevent the mother from removing the children from Sydney to live in Brisbane, and for the children’s time with him be progressively increased to a shared care arrangement. The mother sought orders which would enable her to relocate the children’s residence to Brisbane and for the children spend alternate weekends with the father (in Sydney and Brisbane).
4. The primary judge ordered, among other things, that the mother be prevented from relocating outside Sydney, plus orders for a graduated increase in time with their father to an equal time arrangement once the youngest child started school.
5. The mother appealed. She argued that the approach adopted by the primary judge placed an onus on her to prove that the move to Brisbane was in the children’s best interests.
6. The appeal was allowed. The Full Court found that the primary judge made significant errors of fact which affected the outcome, and so ordered a retrial of the matter.
7. The new primary Judge permitted relocation to Brisbane. In permitting relocation, Her Honour noted that:
   1. the mother’s work prospects would be improved by residing in Brisbane.
   2. if living in Brisbane, the mother would have better mental health and support of her partner, which would enable her to function better as a parent.
   3. if the mother is happy and content it will be positive for her parenting and hence the children’s well-being.
   4. it was not presently practical for the father to move to Brisbane although that may change in the future.
   5. the prospect of the children living with the father in Sydney and spending alternate weekends with the mother “is not realistic for their emotional needs”, as “[t]hey have never spent so little time with their mother on an ongoing basis”.
   6. if living in Brisbane the children’s close relationship with the father can be maintained and developed.
8. The father appealed. The appeal was allowed. The court ordered that the new primary Judge’s orders be set aside, and the proceedings be remitted for rehearing before a judge other than the two judges who had previously heard the matter.
9. The father’s grounds of appeal focused on challenging the primary judge’s consideration and the adequacy of reasons. For example, failing to properly identify and have regard to the entirety of the recommendations and evidence of the single expert, and for failing to provide adequate reasons for not accepting such evidence or proceeding in accordance with it.
10. In the reasons for judgment, it was noted, among other things, that the new primary Judge did not adequately explore the impact on the children of the diminishing relationship with their father if the relocation occurred.

The successful appeal of the father in Loverdos & Bonner does not mean that the mother’s application to relocate will ultimately be refused. The issue of whether the mother is allowed to relocate will be determined at a later stage.

However, the appeal judgment shows the importance of judges complying with the legislative pathways and providing adequate and detailed reasons for judgment. Failure to do so leaves the door ajar for successful appeals. The Full Court has previously held that it is not sufficient to infer from a judgment that these requirements had been considered; they had to be explicitly addressed.

Relocation cases remain difficult and finely balanced. Much turns on the quality of the evidence before the court and careful consideration should be given by the parties to all of the implications and practical effects of a move, including the impact on the child of removal from a familiar environment, in addition to a reduction in physical proximity to another parent.

If you are planning to relocate or your ex-partner has relocated with your children and you would like help with your situation, we recommend you obtain advice from one of our experienced family lawyers.