CLEMENT and BISSET - [2017] FCWA 32

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: CLEMENT and BISSET [2017] FCWA 32

CORAM: THACKRAY CJ

HEARD: 19 & 20 DECEMBER 2016

DELIVERED : 28 FEBRUARY 2017

FILE NO/S: PTW 6298 of 2011

BETWEEN: MS CLEMENT
Applicant
AND
MR BISSET
Respondent

Catchwords:

CHILDREN - With whom a child lives - The mother seeks to relocate with the children to [Country A] - The father opposes relocation and seeks an equal shared care regime - Mother has close family and support in [Country A] including the children’s maternal grandmother - Considered likely the father will also relocate to [Country A] - Presumption in favour of equal shared parental responsibility applied - Equal shared care not in the best interest of the children - If parents live in same city substantial and significant time is in the best interest of the children and reasonably practicable - If parents live in different cities substantial and significant time not practicable - Mother permitted to relocate with the children not before December 2017

Legislation:

Family Law Act 1975 (Cth), s 60CC

Category: Reportable

Representation:

Counsel:

Applicant: Mr Bannerman
Respondent: Self Represented Litigant

Solicitors:

Applicant: Bannerman Solicitors
Respondent: Self Represented Litigant

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

Morgan and Miles (2007) FLC 93‑343
Sawant & Karanth [2014] FamCAFC 235

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

1I am required to resolve a dispute between the parents of [Child A], aged eight, and [Child B], aged six. The boys have primarily lived with their mother, who now wants to take them to live in [Country A], which is her country of origin. The father is opposed to the relocation and wants an equal shared care regime for the boys in Perth.

The parents and their relationship

2The mother and father commenced cohabiting in 1998. They married in 2004, and separated in May 2010. They have two children; Child A born in 2008, and Child B born in 2010. (Child A was born after the parents separated, and has never lived permanently in the same home as his father.)
3The mother and father resided in [Suburb A] (a northern suburb of Perth). Sometime after the separation, the father moved to their investment property in [Suburb B] (not far from Suburb A). The mother and children remained in the family home, until they moved to a new house, which the mother purchased in [Suburb C] (an inner southern suburb of Perth).
4The mother is a 44-year-old [architect]. She was born in [City A] where she grew up with her mother and brother. After completing her [Master of Architecture] degree, the mother went to [City B] for work, but then moved to Western Australia in 1998 after being made redundant. The mother worked for seven years in [different] locations, before taking up a Perth-based position, where she remained until May 2014, at which time she lost her job during the…

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 CLEMENT and BISSET

Details

AGLC: CLEMENT and BISSET [2017] FCWA 32
Case: [2017] FCWA 32
Decision Date: 28 FEBRUARY 2017

CaseChat Overview and Summary

Clement and Bisset is a case where the dispute centred around the relocation of children to another country, with the mother seeking to move and the father opposing it. The father requested an equal shared care arrangement, while the mother pointed out her close family ties and support in the destination country, including the children’s maternal grandmother. It was also likely that the father would relocate to the same country. The court had to decide on the best interests of the children in terms of parental responsibility and care arrangements, considering both scenarios of the parents living in the same city and different cities.

The court needed to determine the application of the presumption in favour of equal shared parental responsibility and whether equal shared care would be in the best interests of the children. The court considered the implications of the parents living in the same city or different cities, and the practicality of substantial and significant time with the children in each scenario. Ultimately, the court ruled that if the parents were to reside in the same city, substantial and significant time with the children was in their best interests and reasonably practicable. However, if the parents were to live in different cities, substantial and significant time would not be practicable.

The court concluded that the mother was permitted to relocate with the children to the specified country, but not before December 2017. This decision was made in the best interests of the children, taking into account the factors such as the close family ties and support available to the mother in the destination country. The court also acknowledged that the father was likely to relocate to the same country, and the possibility of substantial and significant time with the children if they lived in the same city. However, the court found that equal shared care was not in the best interests of the children.

The final orders of the court permitted the mother to relocate with the children to the specified country, but not before December 2017. The court emphasised the importance of considering the best interests of the children and the practicality of substantial and significant time with both parents in its decision-making process.

Orders