Family law: November 2014

Children – Relocation – Mother wins appeal to relocate from Perth to the Pilbura – “Preliminary view” expressed by trial judge – Mother’s concession that she could stay in Perth treated as her proposal

In Jurchenko & Foster [2014] FamCAFC 127 (18 July 2014) the Full Court (Bryant CJ, Thackray & Duncanson JJ) upheld the appeal of a mother against a decision of the Magistrate’s Court of Western Australia in which Acting Magistrate Kaeser dismissed her application to relocate with the parties’ two year old daughter from Perth to a town in the Pilbura where the mother’s new husband was offered permanent employment. The mother was the child’s primary carer while the father had spent ‘relatively little time’ with the child (at [5]).

As to the mother’s concession to the father’s counsel that she would if necessary stay in Perth, the Full Court said (at [98]) that it ‘[did] not consider that the mother’s answers in crossexamination “revealed a third option” at all’ and went on to say that the case bears much similarity to Heaton & Heaton (2013) 48 Fam LR 349 where the Full Court allowed an appeal against an order refusing relocation.

In remitting the case for re-hearing the Court concluded (at [112]) that ‘the complaint is that the enquiry was diverted to [a] determination of the location in which the child could maintain a ‘meaningful relationship’ with both parents, rather than determining which of the proposals was better for the child‘. The Court added (at [123]-[124]) that ’having a ‘meaningful relationship’ with both parents is but one part of a set of arrangements that makes up a care arrangement’; that [a]ll parts of the arrangement must be considered before deciding what outcome is in the child’s best interests; and that the Acting Magistrate ‘did not discuss, but rather assumed, there was benefit to the child in having … a [meaningful] relationship, without saying why, or what weight he placed on that factor’.