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ALLEN and KEANE

ALLEN and KEANE

Case [2022] FCWA 127 1 July 2022

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: ALLEN and KEANE [2022] FCWA 127
CORAM: O'BRIEN J
HEARD: 24 MAY 2022
DELIVERED : 1 JULY 2022
FILE NO/S: [REDACTED]
BETWEEN: MS ALLEN
Appellant
AND
MR KEANE
Respondent

Catchwords:

APPEAL - PARENTING - Where after a trial orders were made for equal shared parental responsibility and for the child to live with the mother for nine nights a fortnight and with the father for five nights - Where the mother's proposal that she have sole parental responsibility and be permitted to relocate with the child to [Country A] was rejected - Where the mother seeks the required leave and to appeal - Where the mother initially seeks a re-exercise of discretion but at the hearing of the appeal concedes that a remitter is appropriate if the appeal is allowed - Discussion of the appropriate test in considering applications for leave to appeal, and the distinction in that regard between interim parenting orders and parenting orders made following a trial - Where leave to appeal is granted - Where the mother seeks to adduce further evidence on appeal but that evidence is contentious and unable to be tested - Where permission to adduce further evidence on appeal is refused - Where none of the grounds of appeal as amended have merit - Appeal dismissed.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Appellant	:	Ms R Oakeley & Mr P Hannan
Respondent	:	Ms C McKenzie

Solicitors:

Appellant	:	DCH Legal Group
Respondent	:	McKenzie & McKenzie

Case(s) referred to in decision(s):

Allesch v Maunz (2000) 203 CLR 172
AMS v AIF; AIF v AMS (1999) 199 CLR 160
Bondelmonte v Bondelmonte (2017) 259 CLR 662
CDJ v VAJ (No 1) (1998) 197 CLR 172
CDW v LVE (2015) FLC 93-683
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Huntingdale Village Pty Ltd (Recs and Mgs Apptd) v Korda [2015] WASCA 101
Jess and Ors & Jess and Ors (2014) FLC 93-620
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Jurchenko & Foster (2014) FLC 93-598
L v P [2022] WASCA 40
Lee v Lee (2019) 266 CLR 129
Lovell v Lovell (1950) 81 CLR 513
Mallet v Mallet (1984) 156 CLR 605
Marsden & Winch (2013) FLC 93-560
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Medlow & Medlow (2016) FLC 93-692
Orosz and Sowards [2010] FCWA 99
Pangkala and Todd [2019] FCWA 115
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
Robinson Helicopter Company Inc v McDermott and Ors (2016) 331 ALR 550

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allen and Keane has been approved by the Family Court of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ALLEN and KEANE [2022] FCWA 127
Case: [2022] FCWA 127
Decision Date: 1 JULY 2022

CaseChat Overview and Summary

In the matter of Allen and Keane, the court was tasked with deciding an appeal concerning parenting arrangements following a trial. The trial had resulted in orders for equal shared parental responsibility and a specific schedule for the child to live with each parent. The mother sought leave to appeal the decision, particularly focusing on the refusal to grant her sole parental responsibility and permission to relocate with the child to a foreign country. The mother initially sought a re-exercise of discretion by the original trial judge but later conceded that, if the appeal were allowed, a remitter might be more appropriate.

The court considered the appropriate criteria for granting leave to appeal and distinguished between interim parenting orders and those made following a trial. The court determined that leave to appeal should be granted, acknowledging the significant impact of the orders on the child's welfare and the parents' rights. However, the court refused permission for the mother to adduce further evidence on appeal, finding that the evidence was contentious and could not be adequately tested. The court further found that none of the grounds of appeal, as amended, had merit.

Ultimately, the appeal was dismissed, and the orders made by the trial judge were upheld. The court emphasized the importance of the child's best interests in making its decision and noted the significant weight that should be given to the findings of the trial judge, who had the advantage of seeing and hearing the evidence and the parties. The court's decision reaffirmed the principles guiding parental responsibility and relocation in cases involving international elements.

Orders