The father of an only child appeals a Court order that allows the mother to relocate the child to another country.

The father’s appeal against the parenting order is based on the judge erring in accepting specific facts and findings and using these in exercising his discretion to determine the best interest of the child when he made the parenting order permitting the mother to relocate the child.

Background to the appeal

In this matter, the child lived with the mother who the judge accepted to be a good primary carer. The father and the child, who is currently six years old, have a good relationship. The mother, a German national, developed a depressive illness and believed that she could provide a more stable life for her and the child in Germany. The mother applied for a parenting order permitting her to relocate the child to Germany. The order was granted. The father appeals this order.

The Appellant’s (the father) argument:

The father based his appeal on an error by the primary judge. The most important grounds for appeal:

• Section 60CC(2)(a) of the Family Law Act 1975 focuses on the benefit to the child of having a meaningful relationship with both parents. This is a primary factor when considering the best interest of the child. The father argued that the primary judge misapplied this section by focusing more on the mother’s benefits than the child’s. He further ignored the fact that there was no objective evidence that there was a significant risk to the welfare of the child concerning her relationship with her mother if the mother remained in Australia.

• The primary judge erred when he rejected the evidence of the family consultant that the child’s relationship with her father would be lost or fractured if the child moved to Germany.

• The primary judge should not have been critical of him for being in arrears with child support. The father also questions why this should be a factor in considering the relocation order.

Legal argument by the respondent:

The mother (the respondent) resists the appeal, but her written and oral arguments do not provide the court with assistance to examine the appellant’s assertions as to the error. In the absence of arguments to assist the Court, the Court reviewed the record in detail to make a determination on the father’s appeal.

The Court has discretion when making parenting orders for the future

In residency cases the same body of evidence can often produce different conclusions from different judges. Each judge is duty bound to make the order that he/she thinks is in the best interest of the child. It may be different to another judge’s order, but in the absence of legal error, the conclusion of the primary judge must stand.

The Court’s consideration is not confined to the arguments and proposals of the parties. The fundamental requirement of the Act is that the best interest of the child is paramount. The judge must look at the consequences for the child based on the evidence and beyond the tactical approaches of the parties involved.

In this case, the Court found the following:

• Regarding s60CC(2)(a) the evidence about the mother was considered given the mother as a parent and how her parenting abilities may be affected. The court found that remaining in Australia would have a detrimental impact on her ability to care for the child and on her relationship with the child as the primary carer. The primary judge therefore did not misapply s60CC(2)(a).

• Regarding the allegation that the judge erred in rejecting the family consultant’s evidence that the child’s relationship with her father would be lost or fractured if the child moved to Germany. The primary judge found that the relationship will be diminished by distance, but given the current relationship and the fact that the mother was not sabotaging it, he felt that the relationship would not be lost. It was noted that the judge is not bound by the evidence or recommendations of a family consultant. He is entitled to distinguish between the outcomes identified in similar studies and the circumstances applicable to the specific case.

• Regarding payment of child support, the Court found that, given the father’s approach to child support, the mother can expect very little financial support from him and she has better employment and housing opportunities in Germany.

The Court found that the appellant did not establish any relevant legal errors by the primary judge and the appeal was dismissed.

The court did not make an order for costs as requested by the mother. The court accepted the father’s argument that due to the already significant amount spent on legal costs, an order for costs would seriously impact on his ability to meet his share of the child’s travel costs.