In the case of Jurchenko & Foster [2014] FAMCAFC 127 (18 July 2014) The Full Court (Bryant CJ, Thackray & Duncanson JJ) upheld the appeal of a mother against Kaeser AM’s dismissal at first instance of her application to relocate. The parties had separated before the child was born in October 2011. The mother wanted to relocate with her new husband to the Pilbara. The mother has another child with her new husband born in June 2013. The appeal was opposed by the father who wants the child to continue to live in Perth so he can have regular time with her. the mother was the child’s primary carer while the father had spent “relatively little time” the child (at [5]) The trial judge Kaeser AM had with the parties’ agreement, expressed a preliminary view at [17] that the “child should have…a meaningful relationship with both parents [but]…[the court ] may have some difficulty accepting…that a meaningful relationship can be maintained [if the mother relocates]…” The Full Court said at [22]
“It must be remembered that the Family Law Act…does not obligate a court to ensure a child maintains a meaningful relationship with both parents: Mulvany & Lane [2009] FamCAFC 76 at [89]. Rather the court must consider the benefit to a child of having such relationships…we do not consider [the Acting Magistrate] was in a position at the outset of trial to form even a `preliminary’ view concerning what benefit there might be to the child having a `meaningful relationship’ with the father or how that benefit ought be weighted with the many other factors the Act requires to be taken into account”
The Full Court said at [98] “With respect to the Acting Magistrate, we do not consider that the mother’s answers in cross examination revealed a “third option” at all’. (In cross examination the mother had said to the father’s counsel she would stay in Perth if necessary)
The Full Court also said at [109]:
“In this respect the present case bears much similarity to Heaton & Heaton (2013) 48 Fam LR 349 where the Full court, allowing an appeal against an order refusing relocation, said at [32]:
`His Honour was first required to determine the children’s best interests by reference to the well known “primary” and “additional” factors referred to in s 60CC in the light of the competing proposals of the parents, that is, the father remaining in Sydney and the mother wishing to move with the children to Port Macquarie. Although the mother’s fall-back position” of remaining in Sydney to stay with the children required consideration, we consider elevating that concession to the status of a proposal resulted in his Honour’s failure to adequately evaluate her application to relocate and misapplication of the section”
The full Court, in allowing the case to be re-heard,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 interest, 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”.