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FLAST CASE SUMMARY: Mareet & Colbrooke [2019] FamCAFC 15 (7 February 2019) Appeal-Parenting-Relocation

Mareet & Colbrooke [2019] FamCAFC 15 (7 February 2019)

The Mother and Father are parents to a baby born in 2018; The 5-month relationship that ended in September 2017. The parties resided in NT when they separated; the mother absconded from NT due to DV by the father. She moved back to NSW where her family resides. After awhile there, the mother relocated to QLD. The mother alleged she moved because the father was stalking her. The child had not been born when the mother relocated to QLD.

5 October 2018, it was in ordered the mother to return with the child to NSW and that she “temporarily” resides at her mother’s home. The Judge restricted the mother from leaving the town in NSW until further order.

The primary judge made orders and adjourned the proceedings until 29 November 2018 for a hearing.

The mother appeals these interim orders. The father has conceded the appeal.

Both parties seek costs certificates in relation to the appeal and any rehearing of the application.

FACTS SUMMARY:

  • Appeal from interim orders restraining the Motherfrom relocating.
  • The Father concedes the appeal.
  • The Mother contends there have been significant errors of law made with the orders.
  • The mother states the Judge failed to take into account relevant matters.
  • The mother contends the orders were made from unsupported evidence.
  • The mother asserts that despite a number of requests, the primary judge failed to deliver written reasons for her decision.
  • Cost certificates sought.

ISSUE:

  • Did her Honour erred in the decision to make relocation orders for the mother and child?

HELD:

Appeal granted. Orders of the primary judge set aside, matter remitted for hearing.

Cost certificates granted.

In determining if her Honour erred in the decision to make relocation orders for the mother and child, it was established the child’s residence was never in the ‘region’ in NSW. The mother moved to a town in QLD while pregnant in March 2018.

Whilst it is the courts power to grant this injunction, according to D and SV [2003] FamCA 280;  (2003) FLC 93-137 at [16]the making of such an injunction can be avoided if the court gives adequate consideration to alternate forms of access to children.

In this instance, her Honour failed to consider the father travelling to the town in QLD to see the child and the consideration of the mother’s older child who was enrolled at preschool in QLD.

Furthermore, the order took no account of the financial burden on the mother due to the relocation, which according to her Honour may only be short term.

Moreover, there was also no evidence before her Honour that the mother’s parents had the financial capacity or even the desire to financially assist the mother in relocating back, additionally, the mothers Grandmother stated that she could not accommodate them.

The Judge was unable to determine the reasons given by her Honour, however the Father has conceded the appeal so it was unnecessary to ‘unravel.’

The Judge was satisfied that her Honour’s orders present error that the appeal succeeded on an error of law.

 

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