03 Jan Father Loses Appeal To Keep Child Within A 40min Drive Of His Home
Principal of Justice Family Lawyers, Hayder specialises in complex parenting and property family law matters. He is based in Sydney and holds a Bachelor of Law and Bachelor of Communications from UTS.
A father has lost his appeal to stop his child from moving outside of a 40-minute driving radius of his own home.
Groth v Banks  FamCAFC 206 concerned an appeal made by the father against final parenting orders made by Thornton J on 13 January 2017.
The orders permitted the mother to change their six-year-old son’s place of residence from Suburb N in Melbourne to Town D.
The father currently lives in Suburb L, which is 30-40 minutes’ drive from Suburb N.
If the son and mother move to Town D, the distance would increase to 80-130 minutes’ drive.
The parenting orders ended the time the child spent with the father after school on Wednesdays due to the longer distance between the father and the mother’s home.
The Family Court had to decide whether or not to re-exercise the discretion of the primary judge and make the mother maintain the child’s residence within Melbourne city.
Facts of the case
The child has always lived with his mother, who is his primary carer.
The father conceded in cross-examination it would be traumatic for the child if he did not live with his mother.
The single expert was of the opinion that it was in the best interests of the child to live with the mother.
The child has a meaningful and loving relationship with both parents and their respective partners and families
The mother met her new partner in April 2013. He lives in Town D in a property which he owns, and in July 2014 the mother decided she wanted to move with the child to live with her partner
Relocation to Town D has been restrained by the father, and the mother has been prevented from implementing her decision for well over two years
The father and his family were settled in Suburb L and he would not move to Town D
The father works part-time and has the capacity to implement the single expert’s spend time arrangements should the relocation to Town D go ahead (as ordered)
Reasons why the relocation was initially allowed
The father’s proposal to constrain the mother would fester more resentment between the parties.
Instead, the mother’s relocation proposal provides the likely potential for improvement in her attitude towards the father.
Furthermore, as the child is 6 years old and has only completed his first year of schooling, there is no evidence to suggest it would be averse to his best interests if he changed schools.
Additionally, the cost of litigation has affected the mother’s financial circumstances, which is part of the reason for her current residence with the maternal grandparents.
The primary judge was also satisfied with all evidence that the mother and her partner would continue to implement the alternate weekend and half of the school holidays spend time arrangements with the father after relocation.
The Family Court Appeal
The father claimed that the judge had failed to take into account unchallenged evidence given by the father and his sister that the mother had perpetrated family violence on and in the presence of the child.
As a result, having failed to take into account the evidence above, the judge misunderstood the evidence of the single expert whom stated, ‘it may be that if the behaviour of [the mother] is proven to have occurred, the risk to [the child]’s relationship with his father should the relocation occur may be too great’
The father also claimed that the primary judge’s conclusion that the mother’s attitude towards the child’s relationship with the father may improve if the relocation went ahead was contrary to evidence and not reasonably open
The Decision of the Full Family Court
The Full Court stated that the primary judge had been faced with a difficult decision and it is likely that different judges may have validly reached different conclusions.
However, as the issue in question is whether or not the ultimate decision resulted from a proper exercise of discretion entrusted to the primary judge, Her Honour had in fact not erred in this.
Overall, the primary judge was found to have not erred in exercising her discretion in granting final parenting orders which allow for the mother to relocate to Town D with the child.
The father’s appeal was dismissed and he had to pay the mother’s legal costs.