Asher v Wilkinson

The case of Asher v Wilkinson involved an appeal by the mother, who was seeking to challenge parenting arrangements set by the Family Court of Western Australia. The central issue was the relocation of the mother and the child to Western Australia, with specific geographical restrictions imposed on where they could reside within that state. The mother argued that the primary judge had misapplied the law by focusing on the practical aspects of residence rather than evaluating the competing proposals of the parties.

The court identified two key legal issues. The first was whether the primary judge correctly considered the competing proposals of the parties as required by established family law principles. The second issue was whether the primary judge correctly applied the inference from Jones v Dunkel, and if the mother's fallback position was properly considered as part of the competing proposals. The court concluded that the primary judge had indeed erred by not focusing on the actual proposals of the parties and by incorrectly elevating the mother's fallback position to a proposal.

In light of these findings, the appeal was allowed, and the original orders made on 20 February 2019 were set aside. The matter was remitted to the Family Court of Western Australia for rehearing before a different judge. The court also granted costs certificates to both parties, covering the costs of the appeal and the rehearing. This ensures that each party can seek reimbursement for their legal expenses related to the appeal and the upcoming rehearing.