What happened

This appeal arose from final parenting orders made in the Federal Circuit Court. The mother (appellant) proposed to relocate the parties' three young children from the Town D/Town E region (a regional centre about 110 km and roughly 90 minutes from Melbourne) to Suburb HH in Melbourne. The father (respondent) opposed the move and sought that the children remain in Town D/Town E with an equal shared care arrangement.

The Federal Circuit Court made final orders on 2 September 2019 that: (a) the parties have equal shared parental responsibility; (b) the mother be restrained from relocating the residential address of the children; (c) the children live with the mother; and (d) the children spend time with and communicate with the father. The mother appealed those parenting orders to the Family Court Full Court (Strickland J gave the reasons delivered 7 August 2020).

At the hearing below a family consultant's report was before the court. The mother advanced reasons for relocating including employment opportunities, financial benefit and improved work-life balance; the judge below did not accept those reasons as established on the evidence and concluded the relocation would significantly affect the children's relationship with the father and extended family (grandparents, cousins), and likely increase travel and anxiety for the older children.

The Full Court dismissed the mother's appeal and made no order as to costs (Orders recorded in the Reasons).

Key factual points to keep in mind: parties separated 15 October 2017; children born in early 2012 (two) and early 2014; husband earned about $150,000 and worked full-time in Town E; wife ran a business earning about $100,000. The proposed move was a substantial change given distance, travel time and family ties in Town D/Town E.

Why the court decided this way

The appeal advanced several grounds, but the essential legal contention was that the trial judge required the mother to demonstrate good or compelling reasons to relocate, an approach said to be contrary to authority which places the focus on the children's best interests under s 60CC.

Strickland J dealt with that by first stating the correct legal principle: a relocating parent is not required to show 'good' or 'compelling' reasons; the enquiry is what is in the children's best interests (citing AMS v AIF and other authorities). However, the court also reiterated established authority that a parent's reasons for relocating are relevant to the determination because they inform whether the parent is exercising parental responsibility in a way that promotes the children's best interests (see the discussion relying upon Taylor & Barker and Malcolm & Monroe).

Strickland J reviewed the entirety of the trial judge's reasons (including the internal recitals of competing proposals, the detailed recounting of the mother's evidence, the family consultant's report and the explicit s 60CC analysis). He observed that the trial judge repeatedly stated that an applicant need not show compelling reasons (recorded instances at the trial judge's paragraphs cited in the decision), but nonetheless tested the mother's asserted reasons against the evidence. The trial judge found the asserted employment and financial benefits and improved work-life balance were not supported by the evidence. On the basis of those evidentiary findings and the assessment under s 60CC (including the likely effect on the children's relationship with their father and paternal grandparents, the travel burden and the children's anxiety), the trial judge concluded the relocation was not in the children's best interests. Strickland J found no appellate error in that approach.

On the 'coercive orders' point, Strickland J rejected the submission that the trial judge's order should be treated as a coercive order of the sort requiring 'rare' or 'extreme' grounds. He distinguished orders that compel a parent personally to relocate (which may be coercive and exceptional) from orders that fix the child's residence or restrain a parent from changing the child's address. The latter were ordinary parental-responsibility/residence orders permitted by s 114(3) and need not carry the 'rare' label.

Finally, on alternatives, the court noted that the duty to consider alternative arrangements is tethered to the existence of viable alternatives. The mother had not advanced any credible, sufficiently developed alternative arrangements to address the disadvantages identified by the trial judge. Therefore the absence of an expressed alternative did not render the trial judge's reasons deficient.

The result: each ground of appeal failed and the appeal was dismissed.

Before and after state of the law

Before this decision, the established principles were:

The paramount test is the children's best interests under s 60CC, not the parent's motives (AMS v AIF; U v U).
A relocating parent need not show 'good' or 'compelling' reasons; however, courts have consistently said the reasons offered by the parent are relevant to the s 60CC assessment (Taylor & Barker; Malcolm & Monroe).
Sampson and Hartnett confirmed that an order under s 114(3) to enjoin relocation can be made where necessary to secure the child's best interests, but such orders may be 'rare' where they are coercive.

Adamson & Adamson had been read by some as inserting a requirement that 'rare' or 'extreme' factors must exist before a court may make a coercive relocation order. In Wilburn & Wilburn, Strickland J clarified the position:

He distinguished between coercive orders directed at the parent to relocate (which are exceptional) and orders fixing the child's residence (which are not necessarily coercive and are commonly within the court's remit under s 114(3)). He did not overrule Adamson & Adamson; rather he emphasised the careful reading of Sampson and Hartnett and the practical distinction between types of orders.

Post-decision: The case reinforces existing doctrine. It underscores that appellate review will permit a trial judge to examine and weigh the relocating parent's reasons as part of the s 60CC analysis. It also provides helpful language distinguishing coercive relocation orders from residence-directed restraints, which is likely to be relied upon when the nature of the order is an issue.

Key passages with plain-English translation

"There is no question that where relocation is an issue, the party seeking to relocate is not required to demonstrate good or compelling reasons for the move. The focus cannot be on the reasons or motives of that party, but rather on what is in the best interests of the children." (Strickland J, summary of law)

Plain-English: You do not have to show 'good' or 'compelling' reasons to move. The court's job is to decide what will best serve the children, not to punish or reward a parent's motives.
"What reasons a parent may declare for relocation may inform the inquiry about whether the proposed relocation is a proper exercise of parental responsibility. A frivolous or whimsical reason may indicate a possibly unstated and underlying desire to move the child as far as possible from the other parent."

Plain-English: A parent's explanation for moving is evidence to be assessed. If the reason seems trivial or contrived, that undermines the parent's case because it suggests the real motive could be to limit the other parent's contact.
"There is a distinction to be drawn between an order directed at enjoining a parent, and an order directed at the child's residence. The former is aptly described as a coercive order, but the latter is not, and the latter is what we have here."

Plain-English: Orders that force a parent to move are different and more legally fraught than orders that simply fix where the child will live. The court made the latter kind of order in this case, which is a normal exercise of power.
"Whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent."

Plain-English: A parent's freedom to live where they like is important, but if moving would harm the child's welfare, the child's interests win.

What fact patterns trigger this precedent

This decision will be most directly relevant where:

A parent proposes to relocate children a moderate to substantial distance that impacts travel time and daily practicalities (the move was ~110 km; Strickland J treated the move as not insignificant).
The relocating parent advances employment, financial or social reasons for the move which are contested and not clearly established by evidence.
The non-relocating parent relies on proximity to school, grandparents and local family networks and proposes a shared-care regime contingent on the children remaining.
There is contested evidence about the likely impact of relocation on the children's relationships and mental health (e.g., anxiety in older children).
No viable, evidence-supported alternative arrangements are advanced to mitigate identified disadvantages.

In such fact patterns, Wilburn & Wilburn authorises trial judges to test the parent's reasons and to decline relocation where, on balance under s 60CC, the children's best interests are not served.

How later courts have treated it

As at the date of these Reasons, Wilburn & Wilburn reinforces the existing line of authority that:

Reiterates AMS v AIF's point that 'compelling reasons' are not required.
Affirms the line in Taylor & Barker and Malcolm & Monroe that reasons proffered by parents are relevant evidence to be scrutinised.
Clarifies the relationship between Sampson & Hartnett and Adamson & Adamson by emphasising the need to distinguish the kind of order and whether it is coercive.

Practitioners should expect Wilburn & Wilburn to be cited in future relocation disputes where the appellant argues that the trial judge impermissibly demanded compelling reasons, or where the appellant tries to characterise a refusal to permit relocation as requiring 'rare' circumstances. Courts will likely rely on its articulation of the difference between coercive relocation orders directed at a parent and residence-directed restraints under s 114(3).

Still-open questions

The line between a 'coercive' order and a 'residence-directed' order: Wilburn & Wilburn draws a practical distinction but does not produce a bright-line test. Future cases will need to identify characteristics that render an order coercive (degree of compulsion, enforcement mechanisms, practical effect on a parent's autonomy).
The evidentiary threshold for discrediting a parent's reasons: While the decision confirms reasons are to be examined, it leaves open how strong the evidence must be to displace a parent's asserted reasons, particularly where evidence on both sides is contested. Trial judges retain broad evaluative discretion.
Alternative arrangements burden on applicant: The case demonstrates the court will not invent alternatives; however, it is not prescriptive about how detailed or evidence-based alternative proposals must be to be 'viable'. Practitioners should fully develop pragmatic alternatives (detailed timetables, travel logistics, support networks) on the evidence.
Interaction with equal shared parental responsibility: The decision involved equal shared parental responsibility combined with a restraint on relocation. Future cases will further test how equal shared responsibility operates when primary residence remains with the relocating parent but residence is restrained.
Role of children's views and age: The Reasons refer to children's anxiety and school-settlement. The decision does not lay out a formula for how much weight to assign to children's preferences or behavioural indicators as distinct from other s 60CC factors; that will continue to be a fact-sensitive enquiry.

Practical takeaway for practitioners: prepare full, evidence-based accounts explaining why relocation will materially benefit the children and, if opposing relocation, develop and present achievable alternatives or show the relocation's tangible adverse impact on the children's relationships and welfare. Where orders restraining residence are sought, address squarely whether the proposed order is functionally coercive and, if so, what exceptional justification exists.

Judgment (41 paragraphs)

[1]

Wilburn & Wilburn [2020] FamCAFC 191; (7 August 2020)

[2]

[2020] FamCAFC 191

[3]

FAMILY LAW - APPEAL - RELOCATION - Where his Honour did not require the appellant to demonstrate good or compelling reasons for her proposed move - Where consistent with authority his Honour reached his conclusion on the basis of an assessment of what was in the best interests of the children in the context of the competing proposals - Where his Honour did not fail to consider the advantages and disadvantages of the respective proposals of the parties - Where his Honour determined that the proposed move was not in the best interests of the children - Where the order made here is not an order which can be described as "coercive" requiring rare or extreme circumstances to be established - Where there was no obvious viable alternative arrangement for his Honour to consider - Where the reasons were not inadequate - Where none of the grounds of appeal have merit - Appeal dismissed.

[4]

Family Law Act 1975 (Cth) ss 60CC, 114(3)

[5]

Adamson & Adamson (2014) FLC 93-622; [2014] FamCAFC 232

[6]

Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458

[7]

Malcolm & Monroe and Anor (2011) FLC 93-460; [2011] FamCAFC 16;

[8]

Oswald & Karrington (2016) FLC 93-726; [2016] FamCAFC 152

[9]

Sampson and Hartnett (No. 10) (2007) FLC 93-350; [2007] FamCA 1365

[10]

Taylor and Barker (2007) FLC 93-345; [2007] FamCA 1246

[11]

U v U (2002) 211 CLR 238; [2002] HCA 36

[12]

[2019] FCCA 2131

[13]

Note: The form of the order is subject to the entry of the order in the Court's records.

[14]

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilburn & Wilburn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

[15]

Note: This copy of the Court's Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

[16]

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT

[17]

By Amended Notice of Appeal filed on 11 February 2020, Ms Wilburn ("the wife") appeals against final parenting and property settlement orders made by a judge of the Federal Circuit Court of Australia on 2 September 2019. However, at the hearing of the appeal the wife abandoned all grounds of appeal against the property settlement orders.
The parenting orders relevantly provided for the parties to have equal shared parental responsibility for X born in early 2012, Y born in early 2012 and Z born in early 2014 ("the children"), for the wife to be restrained from relocating the residential address of the children, for the children to live with the wife, and for the children to spend time and communicate with the husband.
Although the appeal is against all of these orders, it is readily apparent from the grounds of appeal that the primary complaint of the wife relates to the injunction restraining her from relocating the residential address of the children.
The husband opposes the appeal.

[18]

At the time of the hearing below, the wife was aged 36 years and the husband 41 years.
The parties commenced to live together in May 2005, and they married in 2008. Separation occurred on 15 October 2017.
There are three children of the marriage as identified above.
The parties have lived, owned property and worked in the Town D/Town E area during their relationship, and they raised their three children in that region. The region is about 110 kilometres from Melbourne, and it takes approximately 90 minutes to drive that distance, depending on traffic and the time of day.
The husband works full-time as a professional in Town E, and he earns approximately $150,000 per annum.
The wife operates a business as a professional and earns approximately $100,000 per annum.
The proceedings commenced with the husband filing an Initiating Application in the Federal Circuit Court of Australia on 1 May 2018.
A family report prepared by a family consultant on 22 August 2018, was provided to the court.
The wife's proposal was to relocate with the children to Suburb HH, a suburb of Melbourne, where the children would live with her and spend time with the husband.
The husband's proposal was for the children to remain in the Town D/Town E area, and an equal shared care arrangement be put in place.

[19]

There were seven grounds of appeal raised in the Amended Notice of Appeal. However, I confirm that at the hearing of the appeal, the wife abandoned Grounds 5 and 6, and indicated that Ground 7 was not pursued in relation to the property settlement orders made by his Honour. That left the grounds of appeal in relation to the parenting orders.

[20]

The learned trial judge erred in requiring the wife to demonstrate good reasons to relocate.**

[21]

There is no question that where relocation is an issue, the party seeking to relocate is not required to demonstrate good or compelling reasons for the move.
The focus cannot be on the reasons or motives of that party, but rather on what is in the best interests of the children (AMS v AIF (1999) 199 CLR 160 per Haynes J at [217] - [219], and per Kirby J at [192]).
Here, the assertion is that his Honour focussed his enquiry on the wife's reasons for moving, instead of on which of the competing proposals were in the best interests of the children.
In support of that assertion the wife highlights part of what his Honour said in his conclusion as to the issue of relocation, and specifically at [131] - [133] as follows:
1. Further I do not accept that if the mother does not move to Melbourne she will be an unhappy person and therefore the interests of the children will suffer as a result. The mother, in her evidence, said that she was a positive person and that whilst she would not be happy if she was prevented from relocating the children to Melbourne, she would present a positive face. She said that she would be able to shield the children from her disappointment but noted that the children would still be aware of what goes on.
2. In circumstances where the mother's proposed reasons to relocate (being purported financial benefits, a desire to work and socialise with like-minded professionals, and achieve a better work-life balance) are not supported by the evidence before the Court (particularly in relation to financial benefits and work-life balance), then the reasons for the relocation fall away to a great extent. As there were no other reason were advanced for her relocation the Court finds that the mother's proposed relocation is not in the best interests of the children.
3. I do not make this finding because the mother has not demonstrated compelling reasons to explain the move. I make the finding because the reasons that the mother put for the move are not established to the satisfaction of the Court and that if she did move, that move would not be in the best interests of the children. I do not accept the premise that because the mother moves to Suburb HH and sets herself up in accordance with her proposal that she will therefore be happy and the children will be happy. I regard that analysis as simplistic and striking it its lack of consideration of the father's role in ensuring that the best interests of the children are met.

[22]

And, the Full Court said this in Malcolm & Monroe and Anor [2011] FamCAFC 16; (2011) FLC 93-460 at [81]:

[23]

We generally and respectfully agree with Boland J's reasons aforementioned. What reasons a parent may declare for relocation may inform the inquiry about whether the proposed relocation is a proper exercise of parental responsibility. It may be that a parent, while ostensibly holding fast to a commitment for a child to have a meaningful relationship with the other parent, decides that the child's overall best interests will be best met if he or she is permitted to relocate. There may be significant disagreement about whether the parent proposing to relocate is correct or incorrect in determining that balance. And a Court may have to make the decision if the parents cannot agree in the circumstances. But in order to examine the basis of the exercise of parental responsibility, a judicial officer should take notice of the reasons proffered by a parent for the relocation. A frivolous or whimsical reason may indicate a possibly unstated and underlying desire to move the child as far as possible from the other parent.
Thus, at [104] - [112] his Honour determined that the wife's proposal for employment in Melbourne, and the desired work/life balance, was not achievable. And at [124] his Honour found that he did not accept that the husband had engaged in a campaign of vilification such that the wife was compelled to leave the region.
The evidence simply did not support the expressed reasons promoted by the wife for the move.
To complete this consideration of his Honour's reasons, his Honour set out his conclusions regarding the relocation aspect of the wife's proposal, not just from [131] - [133], but from [130] - [134].
Importantly for this ground of appeal, his Honour said this at [130]:
1. On the basis of the evidence before the Court, I do not accept that the mother's proposal to relocate to Melbourne is in the children's best interest. The children currently have the benefits of living close to family, grandparents and cousins and it seems that the older children are well-settled at their local school.

[24]

And, this is followed by what his Honour said in [131] set out above.

[25]

In the last sentence of [132] his Honour perhaps employed some unfortunate expressions, which clearly have informed this ground of appeal, but given the content of [133], it is readily apparent that consistent with authority, his Honour has reached his conclusion on the basis of an assessment of what is in the best interests of the children, in the context of the competing proposals. That is amply confirmed by an analysis of the entirety of his Honour's reasons.
It is also instructive to note that throughout these reasons his Honour recited on no less than four occasions, the principle that an applicant does not need to demonstrate compelling or good reasons to relocate the children (at [76], [84], [86] and [133]).
There is no merit in this ground of appeal.

[26]

The learned trial judge, in focussing his enquiry on the wife's reasons for moving to Melbourne, failed to:

[27]

2.1 consider, or failed to adequately consider, the wife's proposal to live in Melbourne; and

[28]

2.2 weigh the best interests of the child (sic) against the wife's right to freedom of movement**

[29]

I make two comments at this stage about this ground of appeal. First, it may seem that it is in effect a repeat of the complaint in Ground 1, but as I understand it from the wife's summary of argument, the assertion here is that his Honour failed to consider the competing proposals of the parties, and specifically failed to consider the advantages and disadvantages of those proposals.
Secondly, as was conceded by counsel for the wife at the hearing of the appeal, it is not the case that a trial judge is required to "weigh the best interests of the [children] against [the applicant's] right to freedom of movement" (my emphasis).
Where relevant, the right to freedom of movement can be just one of the factors to be weighed, together with all other relevant factors, in deciding what is in the best interests of the children where there is an issue of relocation (Bolitho and Cohen [2005] FamCA 458; (2005) FLC 93-224 at [72]).
As for the first comment outlined above, I am not persuaded that his Honour failed to consider the advantages and disadvantages of the respective proposals of the parties. Indeed, as submitted by the husband in paragraph 23 of his amended summary of argument filed on 11 March 2020, nowhere in her summary of argument filed on 11 February 2020, did the wife identify any examples of an advantage, or a disadvantage, which his Honour failed to take into account.
That leads into the second aspect of this ground of appeal referred to above. Although reference to freedom of movement appears in his Honour's recitation of the relevant principles to be applied (at [86]), the wife correctly asserts in paragraph 19 of her summary of argument, that it is not apparent that his Honour considered the wife's "right to freedom of movement anywhere in the reasons for judgment". However, what his Honour does consider is plainly informed by the respective cases of the parties, and this was not a factor that featured in the wife's case.

[30]

...whatever weight should be accorded to a right of freedom of mobility of a parent, it must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent. ...

[31]

Two further points helpfully made by the husband in paragraphs 32 and 33 of his summary of argument are first, given the evidence of the wife that she would not be "absolutely miserable" if not permitted to relocate the children, it would be an unacceptable elevation of the concept of freedom of movement to find his Honour erred in not deferring to the wife's express preference. Secondly, his Honour was required to balance the relevant factors in circumstances where the wife's express reasons for wishing to relocate were not supported by the evidence.
There is no merit in this ground of appeal.

[32]

The learned trial judge erred in principle in restraining the wife from changing the children's address from the Town D/Town E area when there were no circumstances which were 'rare' or 'exceptional'.**

[33]

This is a ground which is misconceived.
The argument relies on what the Full Court said in Sampson and Hartnett (No. 10) (2007) FLC 93-350 in concluding that it was within power pursuant to s 114(3) of the Act to enjoin a party from relocating or to relocate, namely:
1. However, we conclude there is power under s 114(3) of the Act to enjoin a parent from relocating or to relocate, provided that that injunction is no more than is necessary to secure the best interests of a child. The proper exercise of such a power is likely to be rare, because:

[34]

(i) the location of the child will usually be the critical factor, leaving to the parents the choice about their roles; and

(ii) in a parenting case, an order directed to a parent to relocate or not will likely only serve a useful purpose if that parent is to then discharge a particular role as a parent. If the evidence supports a finding that the parent will play that role, if the child is relocated or not, the order directed to the parent will likely be superfluous. If the evidence does not support such a finding, the order will be coercive in nature and be equivalent to forcing that parent to discharge a role in circumstances not of that parent's choosing.

[35]

However, two comments are made about what the Full Court there says. First, nowhere does the Full Court say that a coercive order can only be made where there are "rare and exceptional circumstances". It simply says that the exercise of power will be "rare", and "at the extreme end of the discretionary range" (at [83]), and that emphasises that the issues will always be the power to make the order the subject of consideration, the terms of the order, and the circumstances which must exist to justify that order.
It was the Full Court in Adamson & Adamson [2014] FamCAFC 232; (2014) FLC 93-622 which introduced the requirement that there needs to exist "rare" or "extreme" factors that warrant the court exercising its discretion to make "coercive" orders, which the Full Court described as "orders requiring a parent to relocate so as to continue to be the primary carer of their child/ren" (at [37] and also see [53]).
It is entirely understandable that when faced with making such orders, the court will need an exceptional basis for doing so.
Secondly, the order here is not an order which can be described as a coercive order that is made pursuant to a rare exercise of power.
As the wife concedes, there is a distinction to be drawn between an order directed at enjoining a parent, and an order directed at the child's residence. The former is aptly described as a coercive order, but the latter is not, and the latter is what we have here. The exercise of power in these circumstances is certainly not "rare".
The wife sought to equate the order here with a "coercive" order by suggesting that the reality of the order is "forcing the wife to discharge a role in circumstances not of her choosing" (Wife's summary of argument filed 11 February 2020, paragraph 23). However, that description is to be found in cases where the order is for the parent to relocate (e.g. see Oswald & Karrington (2016) FLC 93-726), and not in cases such as this. There remains a clear difference as to how a court addresses a requirement to remain in an area, as opposed to a requirement to actually pack up and move.

[36]

The learned trial judge erred in failing to consider, or failing to adequately consider, alternative arrangements to (sic) restraining the wife from changing the children's address from the Town D/Town E area, particularly in circumstances where the distance of the proposed move by the wife was relatively short.**

[37]

It is the case that his Honour did not consider alternative arrangements to the orders that he made, but that begs the question of whether there were viable alternative arrangements.
It is telling that none of any substance were raised by the wife. The best the wife could come up with in support of this ground is an exchange between his Honour and counsel for the wife, instigated by his Honour (and not the wife), in relation to how travel on a Friday could work given the husband's hours of employment. In response to his Honour's query of "so what are you suggesting", counsel for the wife proposed travel on Friday be shared with the parties meeting half-way (Transcript 2 April 2019, p.377 lines 41-45). Then, after further queries from his Honour, counsel obtained instructions and proposed that the wife do the travelling on the Friday and the husband do the travelling on the Sunday, or on the Monday.
However, plainly that did not resolve any of the disadvantages of the wife's proposal (e.g. as described in [103]), and thus cannot be described as an alternative arrangement to avoid the order his Honour did make.
In the absence of any obvious viable alternative arrangements, there was nothing for his Honour to consider, and this ground of appeal has no merit.

[38]

The error asserted here is that his Honour's reasons were inadequate in exposing how his Honour arrived at the conclusions that he did in making the parenting orders. However, as is apparent from the wife's summary of argument, this represents the same challenges as raised in Grounds 1, 2 and 3. Having found no merit in those grounds, this ground necessarily falls away, and it too has no merit.

[39]

Having found no merit in any of the grounds of appeal, the appeal must be dismissed.

[40]

Ultimately, in the event that the appeal was dismissed, no order for costs was sought by the husband.

[41]

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 7 August 2020.

AMS v AIF

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