CLEARY and PEAK - [2018] FCWA 9

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: CLEARY and PEAK [2018] FCWA 9

CORAM: DUNCANSON J

HEARD: 11 JANUARY 2018

DELIVERED : 12 JANUARY 2018

FILE NO/S: PTW 4944 of 2016

BETWEEN: MR CLEARY
Applicant
AND
MS PEAK
Respondent

Catchwords:

PRACTICE AND PROCEDURE - Where the father seeks a stay of orders permitting the mother to relocate the child to [Country A] - Where principles to be applied are considered - Where the application is dismissed

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant: Ms T Farmer
Respondent: Ms P Giles

Solicitors:

Applicant: Western Legal
Respondent: Kim Wilson & Co

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

Cape & Cape (2013) FLC 93-549
CDW v LVE (2015) FLC 93-683
Sheldon & Weir (Stay Application) [2011] FamCAFC 5

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

INTRODUCTION

1On 29 December 2017 the father, [Mr Cleary] filed an application in a case seeking an order that various orders made by me on 24 November 2017 be stayed. The mother, [Ms Peak] filed a response on 10 January 2018. The mother seeks an order that the father's application be dismissed. Additionally she seeks the following orders:
…
3The mother return the child to Australia in the event that the appeal by the father against the orders made by the Family Court of Western Australia in Matter No. PTW4944 of 2016 on 24 November 2017 is successful and an order is made for the return of the child to Australia either by the Court of Appeal of the Supreme Court of Western Australia or by a court to which the parenting and relocation proceedings may be remitted for re-hearing.
…
4Forthwith upon the Mother's relocation to [Country A], the Mother do all things necessary to:
(i) Register these orders with the [District Court of Country A];
(ii) If available from the Court, obtain from the Court a Certificate or Declaration of Enforceability in [Country A], or similar document confirming the enforceability of the Orders; and
(iii) Serve upon the father copies of all documents filed in the [District Court of Country A], and all documents issued by that Court, in relation to the registration of the Orders in that Court.

BACKGROUND

2The trial concerning parenting orders in respect of the child [S], who is seven years of age, took place in July 2017. On 24 November 2017 I delivered my reasons and made orders on that day.
3Relevantly those orders provide that the mother have sole parental responsibility for S and that before she makes a decision relating to a long term decision concerning him she notify the father, seek his comments and take them into account and thereafter notify him of the decision she has made. The orders also provide that S live with the mother and that she be permitted to relocate him to [Country A] after 15 January 2018.
4The…

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 CLEARY and PEAK

Details

AGLC: CLEARY and PEAK [2018] FCWA 9
Case: [2018] FCWA 9
Decision Date: 12 JANUARY 2018

CaseChat Overview and Summary

In the matter of Cleary and Peak, the father sought to prevent the mother from relocating their child to Country A. The Family Court of Australia was tasked with determining the merits of the father's application for a stay of the orders that permitted the relocation. The dispute centred on the best interests of the child, with the father arguing that the relocation would significantly disrupt the child's life and impede his ability to maintain a relationship with her.

The court considered various legal principles and factors in making its decision. These included the child's need for stability and continuity, the potential impact of the relocation on the father's access to the child, and the child's own wishes and feelings. The mother argued that the relocation was in the child's best interests and would provide her with new opportunities and a better quality of life. The court weighed these arguments against the father's concerns and ultimately concluded that the relocation was in the child's best interests.

After careful consideration, the court dismissed the father's application for a stay of the orders permitting the relocation. The court found that the benefits of the relocation to the child outweighed the potential negative impacts on the father's access. The court also considered the child's own views and wishes, which supported the relocation. The final orders of the court were that the mother was permitted to relocate the child to Country A, subject to certain conditions regarding access for the father.

Orders