CHILDREN – TEMPORARY RELOCATION – Where parents separated in 2010 – Where children live with mother and spend time with father – Where mother and father have acrimonious and conflictual relationship – Where mother's husband is employed in Thailand – where mother wishes to spend 18 months with her husband in Thailand and take children with her – Where there are substantial financial and other benefits for mother and her husband if they spend the 18 month period in Thailand – Where father opposes temporary relocation – Where the legitimate interests and desires of mother are relevant to children's best interests – Whether father can maintain meaningful relationship with children if temporary relocation is permitted – Temporary relocation permitted

Legislation:

Family Law Act 1975 (Cth), Pt VII, s 4(1), s 60B, s 60CA, s 60CC, s 60CC(2), s 61DA, s61DA(3), s 64B, s64B(3), s 65D(1), s 65DAA(1), s 65DAA(2), s 65DAA(5), s 65DAC, s 65DAE

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms G Anderson
Respondent: Self Represented Litigant

Solicitors:

Applicant: Cullen Babington & Hughes
Respondent:

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

AMS v AIF (1999) 199 CLR 160 (at [144]
Bretton & Bondai [2013] FamCAFC 168
Champness & Hanson (2009) FamCAFC 96
Collu & Rinaldo [2010] FamCAFC 53
Cox & Pedrana [2013] FLC 93-537
DL & W [2012] FLC 93-496
Goode & Goode [2006] FLC 93‑286
Heath & Heath [2012] FamCA 844
Hungerford & Tank [2007] FamCA 637
Jets & Maker (No 2) [2011] FMCAfam 1473
M & S [2007] FLC 93-313
Mabry & Neilson [2013] FCCA 478
Marsden & Winch (No 3) [2007] FamCA 1364
Marsden v Winch (2009) 42 Fam LR 1
Mazorski & Albright (2008) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose (2008) FLC 93-375
Morgan & Miles [2007] FLC 93-343
MRR v GR (2010) 240 CLR 461
Re F – Litigants in Person Guidelines [2001] FLC 93-072
Rice & Asplund (1979) FLC 90-725
Saxena [2006] FLC 93-268
Sayer& Radcliffe [2012] 48 FamLR 298
Selkin & Artliff-Selkin [2013] FamCAFC 19
Starr & Duggan [2009] FamCAFC 115
Taylor & Barker [2007] FLC 93-345

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

CHANGED

Introduction and background

1These proceedings concern a mother's application for permission to relocate her two children from Australia to Thailand on a temporary basis. The mother's partner has obtained employment in [City A], Thailand. The mother proposes to live with her partner in City A for a maximum of 18 months, during which time she and the children will return to Australia regularly.
2The children's father opposes the temporary…

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 Eades & Wrensted

Details

AGLC: Eades & Wrensted [2014] FCWA 15
Case: [2014] FCWA 15
Decision Date: 5 MARCH 2014

CaseChat Overview and Summary

The case before the court involved parents who had separated in 2010. Their children were living with the mother and spending time with the father. The parents had a conflictual and acrimonious relationship. The mother's husband was employed in Thailand, and the mother wanted to relocate to Thailand for 18 months with her husband and the children. The relocation would provide substantial financial and other benefits to the mother and her husband. The father opposed the relocation. The court was required to consider the legitimate interests and desires of the mother in the context of the children's best interests, as well as whether the father could maintain a meaningful relationship with the children if the relocation was permitted.

The court considered the various factors relevant to the children's best interests, including the nature of the relationship between the children and each parent, the extent to which each parent was able to provide for the children's needs, and the views of the children themselves. The court found that the legitimate interests and desires of the mother were relevant to the children's best interests and that the financial and other benefits to the mother and her husband were not determinative. The court also considered the father's ability to maintain a meaningful relationship with the children if the relocation was permitted. The court found that the father could maintain a meaningful relationship with the children if the relocation was permitted, and that the benefits to the children of spending time with their mother in Thailand outweighed the potential harm of disrupting their relationship with their father.

The court permitted the temporary relocation of the children to Thailand with their mother, subject to certain conditions designed to ensure the children's welfare and to facilitate their ongoing relationship with their father. The court made orders for the mother to provide the father with regular updates on the children's welfare and to facilitate the father's contact with the children during the relocation period. The court also made orders for the parties to attend family consultation services to assist them in managing their relationship and co-parenting effectively during the relocation period.

Orders