Wilson & Wilson – [2013] FamCAFC 43
This is an appeal on parenting orders granted by the Federal Magistrate Court. The father appealed orders by the court granting the mother permission to relocate their child from Sydney to Newcastle. The appeal was accepted and remanded for a rehearing.
The father, aged 57 and the mother, aged 52, had one child together, born in 2001. The parents bought a home together in Sydney in 2004 and separated in the summer of 2007. At that time, the mother worked from home as a bookkeeper and the father worked as a contractor for a consultancy company.
Initially, the parents were able to work out parenting arrangements. From the time they separated, the child lived with the mother and spent time with the father from Friday afternoon until Sunday morning. When, however, the mother asked the father’s permission to relocate with the child to Newcastle, some 118 kilometers from Sydney, the father refused. The mother turned to the court for parenting orders and permission to relocate and the father sought orders restricting the mother to the Sydney area.
The mother had several reasons for relocating. The parents agreed to sell the family home and the mother believed she would not be able to find affordable housing in Sydney. She also wanted to reduce her work hours in order to spend more time with the child. Her final reason for requesting relocation was to be closer to good friends in Newcastle since she was isolated in Sydney. She asked for shared responsibility, that the child live with her and spend every second weekend (Friday afternoon through Sunday) and half the school holidays with the father. The father asked the court to give them share parental responsibility, that the child live with the mother within a 15 km radius of Sydney and that he have the child three out of four weekends a month for three nights.
The child in question was 11 years old at the time of the divorce, suffered from ADHD which manifested itself in difficulties in school work and making friends. The child was close to both parents, but had a stronger relationship with his mother. An expert witness during the initial trial in the Federal Magistrate court stated that the move to Newcastle could potentially harm the child since change was difficult for him. The expert also said the move would impact negatively on his relationship with his father since the drive to Sydney would be tiring and the child might want to stop making the visits. Additionally, he would be seeing his father less frequently.
While the Federal Magistrate noted these claims, she considered the mother’s reasons in the equation as well. She held that in order to provide the child with close to the same standard of living, the mother would, at the very least, need to move to the outskirts of Sydney, further from the father, or she would have to downsize to a small apartment to stay close by. She would also be required to work her current hours, or longer, in a place where she felt isolated. The father, on the other hand, was not required to make any changes. The Federal Magistrate felt that placing the mother in this situation, when she is the primary caregiver for a child with special needs, might result in the child “not receiving the level of parenting he has hitherto enjoyed from his mother”. The Federal Magistrate ruled in favor of the mother and allowed her to move to Newcastle.
Lower Court did not Weigh Evidence Correctly
The Family Court accepted the father’s claims on appeal, taking into consideration the testimony of the expert witness. Overall, the court found that the lower court had not given appropriate weight and consideration to the expert witness, who expressed her concerns that the move itself could be damaging to the child. In particular, the Family Court ruled that the Federal Magistrate was mistaken when she found: (1) the child’s relationship with the father would not be negatively affected by a change in the quantity or nature of the time they spent together; (2) that a move to Newcastle would not negatively impact on the quality of time the father and child spend together; (3) the child was okay with change he was prepared for and; (4) that the best interests of the child were met by the mother having an “unencumbered property with a backyard”. The court found that the lower court did not appropriately weigh the evidence in considering the best interests of the child. The case was sent back to the lower court.
