D and S - [2009] FCWA 107

[2009] FCWA 107

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	[THE REGIONAL CENTRE]
CITATION	:	D and S [2009] FCWA 107
CORAM	:	THACKRAY CJ
HEARD	:	23 AND 24 MARCH 2009
DELIVERED	:	12 AUGUST 2009
FILE NO/S	:	PTW 4232 of 2007
BETWEEN	:	D Applicant/Father
AND
S Respondent/Mother
Catchwords:

CHILDREN – with whom a child lives – where the parties live 260 kilometres apart – where the father's proposal involved "dual schooling" - where the father's plans to relocate to near mother's residence were vague

Legislation:

Family Court Act 1997 (WA)

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr H Moser
Respondent	:	Ms N Hossen

[2009] FCWA 107

Solicitors:

Applicant	:	Hudson Henning & Goodman
Respondent	:	Great Southern Legal

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

B and B

Family Law Reform Act 1995 (1997) FLC 92-755

Champness & Hanson [2009] FamCAFC 96
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
Dacia & Bennington [2008] FamCAFC 135
G & C [2006] FamCA 994
Goode and Goode (2006) FLC 93-286
Marsden & Winch (No. 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Mulvany & Lane [2009] FamCAFC 76

[2009] FCWA 107

1 [The father] and [the mother] have agreed they should have equal shared
parental responsibility for their daughter, [Emily], who is four years of age. They have not been able to agree other matters, especially the time [Emily] will spend with each of them.
2 The dispute is complicated because [the father] lives [on a farm] and

[the mother] lives 260 kilometres away in [a regional centre]. [The father] has
somewhat vague plans to move to [the regional centre].

Orders sought by the father

3 The orders sought by the father were set out in his amended Application filed in
February 2009. The first part deals with arrangements while he remains at [the farm]. The father proposes that during school terms he should have [Emily] six nights each fortnight. This would be arranged as follows:
Week 1. [Emily] spends time with the father at [the farm] from 6.00 pm Thursday until the commencement of kindergarten/school on the following Monday. (If [Emily] is not attending kindergarten/school the time would commence at noon on Thursday.)
Week 2. [Emily] spends time with the father in [the regional centre] from noon Wednesday until noon Friday. (If [Emily] is attending kindergarten/school the time would start at the end of kindergarten/school on Wednesday and finish at the end of kindergarten/school on Friday.)

4 The second part of the proposal concerns when the father moves to live in

[the regional centre]. If this happens he proposes a week-about shared care
arrangement, with handovers on Fridays.
5 The father proposes that [Emily] spend half of the mid-year school holidays with
each parent. He proposes that he have the first week of the holidays, unless otherwise agreed. He also sought a somewhat confusing order about sharing…

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 D and S

Details

AGLC: D and S [2009] FCWA 107
Case: [2009] FCWA 107
Decision Date: 12 AUGUST 2009

CaseChat Overview and Summary

In the Family Court of Australia, the case of D and S revolved around a dispute between the parents of two minor children. The father sought to relocate 260 kilometres from the mother, proposing a "dual schooling" arrangement where the children would alternate living with each parent. The mother opposed the relocation, arguing that it would significantly disrupt the children's lives. The central legal issue before the court was whether the father's relocation plan was in the best interests of the children. This required the court to weigh the father's proposal against the mother's objections and consider the potential impact on the children's welfare.

The court examined the father's proposal for "dual schooling," which involved the children spending alternate weeks with each parent. The father had not provided specific details about where he intended to relocate, nor had he outlined how the proposed arrangement would be logistically feasible. The court noted that the father's vague plans and the significant distance between the parents' residences raised concerns about the practicality and sustainability of the proposed arrangement. The mother argued that the disruption to the children's schooling, routine, and stability would be detrimental. The court considered these factors in the context of the children's best interests, ultimately finding that the father's proposal was not in their best interests.

In reaching its decision, the court emphasised the importance of stability and continuity in the children's lives. The significant distance between the parents' residences and the lack of concrete plans from the father meant that the proposed "dual schooling" arrangement was impractical and potentially harmful to the children. The court concluded that the father's vague relocation plans did not sufficiently address the children's need for stability and security. As a result, the court denied the father's application to relocate and ordered that the children remain in their current living arrangement with the mother. The court recognised the importance of the children's ongoing relationship with the mother and the need for a stable environment.

Orders