The case of Adamson & Adamson [2014] FamCAFC 232 (3 December 2014) was an appeal from parenting orders, and, in particular, requiring the appellant the mother to relocate the parties’ child to an area near the respondent’s residence. The appeal was allowed.
The Full Court (Ainslie-Wallace, Murphy and Kent JJ) heard the appeal of the mother of child (‘X’) aged three years from Judge Altobelli’s order requiring the mother to relocate.
Separation took place after the father assaulted the mother. The mother relocated from Sydney to Town S (200 kilometres north of Sydney). Where she commenced living with her parents who provided significant support. The child was barely 12 months old when her parents separated in 2011. (at [17]-[18]) The father had remained in Sydney but during the during trial in 2013 had moved to Town C on the NSW Central Coast (140 kilometres from Town S).
The appeal centred on the child’s time with father and a coercive order made on the application of the father, that the mother relocate to within 20 kilometres of the father’s new home by January 2015.
The Full Court at [35]-[41] examined the authorities as to the application of s65DAA Family Law Act 1975 where the Full Court said:
“To order someone to relocate to another place will require the court to be satisfied that the practicalities of life equally or sufficiently exist in the place to which the party is required to move.”
The Full Court said at [44] “…the trial judge found that, even on the mother’s proposal that she and the child continue living in Town S while the father remained in Town C with the child spending time with father as proposed by the mother, the child would continue to have a meaningful relationship with the father.”
And at [45] ”it follows that it could not be said that the coercive order was founded upon any identified need, in the child’s best interest, essential to establishing or maintaining the child’s best interests, essential to establishing or maintaining the child’s meaningful relationship with the father”.
The Court also said at [47] that “the trial judge found that it was common to the proposals of both parents that it was in the child’s best interests that she should continue living with the mother: and that “it was not the father’s proposal that the child should live with him even if the mother did not herself relocate”.
The Full Court concluded at [53] “In our judgement the central findings which we have identified…do not sit comfortably with the conclusion that rare or exceptional circumstances existed in this case such as to justify a legitimate exercise of discretion to make the coercive order…”
The appeal was allowed, the coercive order discharged, the order as to the father’s time with the child varied and the case otherwise remitted for re-hearing.