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Key decisions

  • Franklyn [2019] FamCAFC 256
  • Laremore & Speidell [2019] FamCAFC 215
  • Re F: Litigants in Person Guidelines [2001] FamCA 348
  • Soulos & Sorbo [2019] FamCAFC 231 
  • Babray [2019] FCCA 3514


Unilateral relocation by mother (which did not prevent her from adhering to interim order for father’s contact) allowed on appeal

In Franklyn [2019] FamCAFC 256 (23 December 2019) the Full Court (Watts, Austin & Rees JJ) allowed the mother’s appeal against an interim order of the Federal Circuit Court that the appellant, who had unilaterally relocated with the parties’ four year old child from central west NSW to south eastern Queensland, return with the child enabling the child to spend five hours each Saturday with the father.

Upon separation, the child had little or no contact with the father for seven months due to the mother’s concealment of her address and a family violence order obtained by her. That order was ultimately discharged (at [9]). On the father’s application, an interim order was made with his consent to his having two hours a fortnight with the child at a contact centre. Four months later the father filed an application for variation of that interim order. At the hearing, the mother disclosed that she had already relocated with the child (at [11]).

After a two-month adjournment, the father (and the Independent Children’s Lawyer ‘ICL’) sought orders that the mother return to NSW and that the father have unsupervised time with the child.  Alternatively, the father sought orders that the child live with him, in the event that the mother failed to return.

The Full Court said (at [28]-[29]):

‘While the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII of the Act (AMS v AIFU v U … ). Parents enjoy as much freedom to live where they please as is compatible with their obligations pertaining to the children … Only when the children’s welfare would be adversely affected must a parent’s right to freedom of mobility defer to the paramount consideration of the children’s best interests …

When the mother relocated with the children from central west NSW to south eastern Queensland, she did so in the knowledge she would still need to adhere to the interim parenting orders made in May 2018 requiring her to present the children to the father at a contact centre in Town H, NSW once every fortnight.’

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