Bowen & WILLIAMS (No 2) - [2015] FamCA 546

FAMILY COURT OF AUSTRALIA

BOWEN & WILLIAMS (NO 2)

[2015] FamCA 546

FAMILY LAW – CHILDREN – international relocation – best interests – where father would also relocate overseas if child permitted to leave Australia with the mother - further submissions invited

FAMILY LAW – PROPERTY – overseas child support debt – add backs – equal contributions

Family Law Act 1975 (Cth) Part VII s 60B s 60CA s 60CC s 60DA s 60 DAA
s 60DAC s 90SM

Banks & Banks [2015] FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth (1981) 148 CLR 1
S v Australian Crime Commission (2005) 144 FCR 431
Malcolm & Munro (2011) FLC 93-460
Morgan & Miles (2007) FLC 93-343
U & U [2002] 211 CLR 239
Sigley & Evor (2011) 44 FamLR 439
T & N [2001] FMCA fam 222

APPLICANT:

Mr Bowen

RESPONDENT:

Ms Williams

FILE NUMBER:

BRC

7647

2013

DATE DELIVERED:

16 July 2015

PLACE DELIVERED:

Townsville

PLACE HEARD:

Brisbane

JUDGMENT OF:

Tree J

HEARING DATE:

5, 6 and 7 May 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr Brasch QC

SOLICITORS FOR THE APPLICANT:

Ryan Kruger Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jordan

SOLICITORS FOR THE RESPONDENT:

Barry Nilsson Lawyers

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bowen & Williams (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC7647/2013

Mr Bowen

Applicant

And

Ms Williams

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By his Amended Initiating Application filed 2 October 2014, Mr Bowen (“the father”) seeks orders that the parties have equal shared parental responsibility for C (“the child”) born in 2011 and hence presently 4 years of age. He further seeks orders that the child spend progressively increasing amounts of time with him, to the point where by January 2016, the child would spend equal time with both parents.
By her Further Amended Response to Initiating Application filed 13 October 2014, Ms Williams (“the mother”) seeks orders that the parties have equal shared parental responsibility for the child, and that the child live with her. She also seeks an order that she and the child be allowed to forthwith permanently relocate from Brisbane to New Zealand, after which the father would spend 12 occasions per year in New Zealand with the child, and subject to a graduated introduction, culminating in each of the 12 occasions being for 5 consecutive overnights. She also proposes that on a further two occasions each year, she would travel with the child to Australia, when the father would again spend a period of not more than five consecutive days, including overnights, with the child.
In the event that the mother was not permitted to relocate to New Zealand, she proposed a regime of orders which would provide for equal shared parental responsibility, and for the child to live with the mother and spend four…

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 Bowen & WILLIAMS (No 2)

Details

AGLC: Bowen & WILLIAMS (No 2) [2015] FamCA 546
Case: [2015] FamCA 546
Decision Date: 16 July 2015

CaseChat Overview and Summary

This matter concerned an application by the mother for permission to relocate with the child to New Zealand. The father opposed the relocation and sought orders for the child to remain in Australia. The father also sought to add back to the property pool certain amounts he alleged were dissipated by the mother, including an overseas child support debt. The application was heard by Tree J in the Family Court of Australia.

The primary legal issue before the court was whether it was in the best interests of the child to permit the mother to relocate to New Zealand. A secondary issue concerned the father's application to add back certain alleged dissipations by the mother, including an overseas child support debt, to the property pool in the context of property settlement.

In relation to the relocation, the court noted that the father indicated he would also relocate overseas if the child were permitted to leave Australia with the mother. This fact was considered significant in the court's assessment of the child's best interests. The court invited further submissions from the parties on this aspect of the case. Regarding the property issues, the court considered the principles of equal contributions and the circumstances under which alleged dissipations could be added back to the property pool.

The court did not make final orders at this stage, having invited further submissions on the relocation issue.

Orders