Relocating with children when in the defence force

Recent cases and impacts for defence force parents wishing to relocate with children

In the recent case of Wendland [2017] the Court gave permission for a mother to relocate with a child wherever the Mother was posted by the Australian Defence Force.

The parties had one child who was born in 2013. Since the child’s birth both the mother and father had lived in same town in Queensland. However, as the mother was employed by the Australian Defence Force (“the ADF”), it has always been possible that she would be posted to another area.

As the prospect of such a posting became more likely and imminent, the mother sought an order that she be permitted to take the child to live with her wherever she is posted. That order was opposed by the father who proposed that if the mother was to relocate, the child should live with him in the town in which the child had always lived.

After a hearing on 6 and 7 September 2017 the Court made the following order: “That the Child be permitted to relocate to wherever the Mother is posted by the Australian Defence Force.”

The father appealed the decision.

At the time of the hearing it was not known if, when or where the mother might be posted.

The father argued that a posting to another area was neither likely nor imminent and therefore the application was premature. Alternatively, he submitted that the mother’s application should be dismissed because until the location of any posting was known, informed decisions could not be made as to what was in the child’s best interests.

The father argued that the order was unreasonable because:

1. the child had lived her whole life in the same town;
2. the child was spending regular time with the father every week; and
3. the writer of the family reports did not support the child relocating.

The Court determined:

1. The parties had planned to move as a family in the event the mother was required to work elsewhere;
2. The Court took into consideration the evidence of the family report writer and in particular his opinion that a relocation would diminish the relationship between the child and the father and paternal grandmother. In the balance of those paragraphs the Court said: “this was not an easy decision and there were negatives with any decision that might be made. On balance, his Honour considered that the child’s best interests were served by maintaining her relationship with the mother as a member of the ADF”.
3. The Court correctly noted the wide nature of the proposed order and the fact that the mother is likely to be subject to further postings. Section 60CC(3)(l) of the Family Law Act 1975 requires the court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”. After undertaking that consideration the Court was of the view that the order made was supported by s 60CC(3)(l).
4. The court was not obliged to accept the opinion of the family report writer. The evidence of an expert is simply evidence that must be considered along with all the other evidence in the matter. It is for the trial judge to determine the weight to be given to it.
5. The order proposed, notwithstanding its breadth, permitted the child to spend time with the father in a manner that was reasonably practicable and could be afforded.
6. Consideration was given to the family report writer’s opinion, but consideration was also given to the mother’s freedom to pursue her career and to live where she wished and, most importantly, the effect on the child if the mother were forced to abandon her career and remain living in the same town. Significant weight too was given to the finding that in the event of a relocation the child would still maintain a meaningful relationship with the father, albeit one of a different nature.

After considering all matters the Full Court of the Family Court dismissed the appeal and upheld the original Order.

The parties agreed between themselves however that the Order would be varied to state: “That the Child be permitted to relocate to wherever within the Commonwealth of Australia the Mother is posted by the Australian Defence Force.”

All relocation cases are complex and you should obtain advice from a specialised family lawyer. If you have any further questions in relation to relocation or an associated family law please contact the team at Turnbull Hill Lawyers on 1800 994 279.