F and B - [2008] FCWA 132

[2008] FCWA 132

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	F and B [2008] FCWA 132
CORAM	:	THACKRAY CJ
HEARD	:	21 AUGUST 2008
DELIVERED	:	7 NOVEMBER 2008
FILE NO/S	:	PTW 4635 of 2007

BETWEEN

: F

Applicant/Father
AND
B
Respondent /Mother

Catchwords:

CHILDREN - With whom a child lives - Relocation

Legislation:

Family Court Act 1997

Family Law Act 1975, s 60B, s 60CC, s 61C, s 65DAA

Category: Not Reportable

[2008] FCWA 132

Representation:

Counsel:

Applicant	:	Mr P Mugliston
Respondent	:	Mr M Berry

Solicitors:

Applicant	:	CB Legal
Respondent	:	DCH Legal Group

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

AMS v AIF (1999) 199 CLR 160

B and B

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

C and G [2006] FCWA 57
Carpenter and Lunn [2008] FamCAFC 128
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
G and C and Independent Children’s Lawyer [2006] FamCA 994
Goode and Goode (2006) FLC 93-286
Marsden and Winch (No. 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Sealey and Archer [2008] FamCAFC 142
Taylor and Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238

[2008] FCWA 132

1 [Mr F] and [Ms B] cannot agree where their three year old son, [Charlie], should
live. [The mother] wants to take [Charlie] to live in [the capital city] where most of her family lives, whereas [the father] wants [Charlie] to stay in Perth, where his family resides and where [Charlie] has lived all of his life.

Orders sought by father

2 When [the father] commenced proceedings in August 2007 he was proposing
that [Charlie] continue to live primarily with [the mother] and spend time with him on alternate weekends from 6.00 pm on Friday to 6.00 pm on Sunday, as well as on special occasions.
3 The orders sought by [the mother] in her Response filed in September 2007 proposed that [Charlie] live with her in [the Eastern states] and spend time with [the father] each alternate weekend from 3.00 pm on Saturday until 3.00 pm on Sunday. In his Reply filed in December 2007, [the father] sought an order that [the mother] be prohibited from relocating. He proposed that if [the mother] did relocate, [Charlie] should live with him and [the mother] could have contact with [Charlie] for up to two months each year in [the Eastern states].
4 Shortly prior to trial, [the father] filed a Minute of Proposed Orders which
assumed that [the mother] would return to [the Eastern states] without [Charlie] if she did not obtain the orders she was seeking. On that basis, [the father] sought an order for joint parental responsibility and an order that [Charlie] live with him and spend time with [the mother] in [the Eastern states] (at least initially) twice a year for a period of ten days. However, at the commencement of his cross-examination, [the father] made clear that his…

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 F and B

Details

AGLC: F and B [2008] FCWA 132
Case: [2008] FCWA 132
Decision Date: 7 NOVEMBER 2008

CaseChat Overview and Summary

The case of F and B involved a dispute between the mother and father of two children regarding the relocation of the children to another state. The father sought an order that the children remain with him in Victoria, while the mother sought an order that they remain with her in Western Australia. The Family Court of Australia was required to determine which parent the children should live with and whether the mother's proposed relocation to Western Australia was in the best interests of the children.

The court had to consider a number of factors in reaching its decision, including the views of the children, the potential impact of the relocation on their relationship with each parent, and the mother's reasons for wanting to relocate. The court also had to consider the principle of equal shared parental responsibility and the need to avoid significant, harmful change to the children's circumstances. Ultimately, the court found that the relocation was in the best interests of the children and ordered that they live with their mother in Western Australia.

In reaching its decision, the court found that the children's views were significant but not determinative, and that the mother's reasons for wanting to relocate were reasonable and based on a genuine desire to provide the children with a better quality of life. The court also found that the potential impact of the relocation on the children's relationship with their father could be mitigated through regular contact and that the father's concerns about the relocation were not sufficient to override the benefits to the children. The court emphasised the importance of avoiding significant, harmful change to the children's circumstances and concluded that the relocation was not such a change.

The court ordered that the children live with their mother in Western Australia and that the father have regular contact with them. The court also made orders regarding the division of the parents' property and the payment of maintenance by the father. The court's decision was based on a careful consideration of the evidence and the best interests of the children.

Orders