ANAND and LAL - [2023] FCWA 6

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: ANAND and LAL [2023] FCWA 6
CORAM: O'BRIEN J
HEARD: 17 JANUARY 2023
DELIVERED : Ex tempore
FILE NO/S: 1636 of 2017
BETWEEN: MS ANAND
Applicant
AND
MR LAL
Respondent

Catchwords:

PARENTING - Where the wife seeks interim orders permitting her to relocate with the child to [State A] - Where the child has only recently commenced overnight time with the husband - Where there is no evidence as to the financial circumstances of the parties to enable a consideration of the feasability of the wife's proposals for the child to travel to spend time with the father - Triable issues - Turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr R Van Der Merwe
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Calverley Johnston Lawyers
Respondent	:	Self Represented Litigant

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

Banks & Banks (2015) FLC 93-637
Bielen & Kozma [2022] FedCFamC1A 221
Dundas & Blake (2013) FLC 93-552
Eaby & Speelman (2015) FLC 93-654
Goode and Goode (2006) FLC 93-286
Paggett & Cable (2015) FLC 93-670
SS & AH [2010] FamCAFC 13

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 Anand and Lal has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reason for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2012 (WA).

1[Ms Anand] ("the wife") and [Mr Lal] ("the husband") are the parents of one daughter, [Child A] born [in] 2014. They were married in December 2010 and separated in September 2016.
2The parties were involved in proceedings in this court which commenced in March 2017. After those proceedings were resolved, further proceedings were commenced in October 2019. [In] December 2019, orders were made by consent for Child A to live with the wife and spend time with the husband each alternate weekend on Saturday and Sunday from 9.00 am to 5.00 pm, and at such other times as might be agreed. Those orders remain current.
3On 28 February 2022, the wife commenced the current proceedings. She seeks the discharge of the existing orders, sole parental responsibility, and that Child A move with her to live in [State A]. That application is opposed by the husband, who proposes in his amended response filed on 16 August 2022 that orders be made for equal shared parental responsibility, and for Child A to live equally with both parents.[1]
[1] For the purpose of these short form reasons, it is unnecessary to replicate the detailed final orders sought by…

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.

Continue reading ANAND and LAL

Details

AGLC: ANAND and LAL [2023] FCWA 6
Case: [2023] FCWA 6
Decision Date: 18 JANUARY 2023

CaseChat Overview and Summary

The case involved Anand and Lal, where Lal sought interim orders to permit her to relocate with their child to another state. The dispute centred on the best interests of their child, particularly regarding the arrangements for the child to spend time with the father, Anand, who had only recently begun to have overnight visits with the child. The Family Court of Australia was tasked with determining whether Lal's proposal to relocate was in the child's best interests, considering the recent establishment of the child's time with Anand.

The court was required to decide whether it was in the child's best interests to allow Lal to relocate, and if so, what arrangements should be made to ensure the child could continue to have meaningful time with Anand. Key issues included the potential impact of the relocation on the child's relationship with Anand, the feasibility of the proposed travel arrangements for the child to maintain contact with Anand, and the absence of financial evidence that could inform the court's decision on the practicality of these arrangements.

In delivering its judgment, the court found that several triable issues existed which could not be resolved on the evidence before the court. Notably, the court highlighted the absence of financial evidence that could assist in determining the feasibility of the proposed travel arrangements for the child to maintain contact with Anand. Given the recent commencement of the child's overnight visits with Anand, the court concluded that these issues needed to be explored further in the context of the child's best interests. The case was deemed to turn on its own facts, and thus, the court was unable to make a definitive ruling at the interim stage.

The court's final orders included the continuation of the existing interim parenting orders, with a direction for further evidence to be provided regarding the financial circumstances of the parties and the feasibility of the proposed travel arrangements. The matter was listed for a further hearing to address these outstanding issues.

Orders