C and S - [2010] FCWA 78

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	C and S [2010] FCWA 78
CORAM	:	MARTIN J
HEARD	:	5 MARCH, 9 APRIL, 2 AND 21 JUNE 2010
DELIVERED	:	22 JULY 2010
PUBLISHED	:	27 JULY 2010
FILE NO/S	:	PTW 5864 of 2007
BETWEEN	:	C Applicant/Father
AND
S Respondent/Mother
Catchwords:

Family Law - Children - Relocation - USA - Wife remarried - Views of children

Legislation:

Family Law Act 1975 (Cth) s 60B
Family Law Act 1975 (Cth) s 60CA
Family Law Act 1975 (Cth) s 60CC

Family Law Act 1975 (Cth) s 65DAA

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
(Page 2)
Respondent	:	Mr Kuurstra and Self Represented Litigant

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Anthony R Clarke & Associates

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

Goode and Goode (2006) FLC 93-286
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) FLC 93-424
Taylor and Barker (2007) FLC 93-345
Wiley v Wiley [2008] FamCAFC 153
Ferraro and Bryant [2008] FCWA 132

(Page 3)

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES, PLACES AND IDENTIFYING DETAILS HAVE
BEEN CHANGED

1 The issues to be decided are the parties’ applications filed for parenting orders.
The applicant father’s was filed on 11 November 2008. The respondent filed her response on 11 November 2008.
2 The principal issue for determination was whether the respondent should be
permitted to relocate to the United States of America (“USA”) with the children of the marriage, a girl aged nearly 16 years, and a boy, just aged 12 years, to join her present husband.
3 There are issues between the parties as to the appropriate arrangements for the

father to maintain his relationship with the children in the event the mother is
permitted to relocate with them.
4 At trial, the orders sought by the parties were extensive and detailed. The orders sought by each party are set out almost in full in this judgment.

Background

5 The father [(“Ronald”)] was born [in] August 1968 and is a [tradesman] and photographer. The mother [(“Diana”)] was born in [the UK] [in] November 1971, migrating to [Australia] with her family in 1980. The mother moved to Perth in 1986 when she received a [sporting] scholarship.
6 The parties met in 1993, and married [in] November 1997.
7 Their two children are:-

• Kara C born [in] August 1994
• Dougall C, born [in] July 1998
8 The family relocated to the USA on 14 February 2007, on the mother’s
[sporting] visa. The father says the move was for the mother’s career, but at the time, it was a family decision as it was considered there would be better opportunities for the family in the USA.
9 The mother said that parties separated in June 2007, and the father says it was on
about 28 August 2007, when the father left the former matrimonial…

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 C and S

Details

AGLC: C and S [2010] FCWA 78
Case: [2010] FCWA 78
Decision Date: 22 JULY 2010

CaseChat Overview and Summary

The appeal was brought by the father, C, against an order made by the Family Court that permitted his children to relocate to the USA with their mother, S. The children were aged nine and eleven years at the relevant time. The parents had separated and the children had been living with their mother. The mother subsequently remarried and wished to relocate with the children to the USA to live with her new husband. The father opposed the relocation on the basis that it would significantly harm the children’s relationship with him and the children also expressed a wish to remain in Australia. The Family Court determined that the relocation was in the best interests of the children and made an order permitting it.

The appeal turned on the weight to be given to the views of the children and whether the Family Court erred in making the order permitting relocation. The appeal also raised questions about the relevance of the mother’s remarriage to the best interests determination.

The Full Court held that the Family Court was correct to take into account the views of the children. While the primary consideration in relocation cases was the best interests of the children, the views of mature children could be a relevant consideration. The Court held that the Family Court had correctly evaluated the evidence and was entitled to conclude that the benefits of the relocation outweighed the harm to the children’s relationship with the father. The Court also held that the mother’s remarriage did not of itself determine the best interests of the children. The Full Court dismissed the appeal.

The Full Court made no orders as to costs.

Orders