FERNANDEZ and MACPHERSON - [2018] FCWA 12

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: FERNANDEZ and MACPHERSON [2018] FCWA 12

CORAM: O'BRIEN J

HEARD: 16-18 OCTOBER 2017

DELIVERED : 23 JANUARY 2018

FILE NO/S: PTW 6765 of 2016

BETWEEN: MR FERNANDEZ
Applicant
AND
MS MACPHERSON
Respondent

Catchwords:

PARENTING - where mother unilaterally relocated with very young child at time of separation - where father seeks orders for the child to live equally with both parents and for mother to be required to live within a 20 km radius of his home - turns on own facts

Legislation:

Family Law Act 1975 (Cth) s 4AB, s 60, s 65

Category: Reportable

Representation:

Counsel:

Applicant: Self-Represented Litigant
Respondent: Mrs R Oakeley

Solicitors:

Applicant: Self-Represented Litigant
Respondent: Thompson Wheelahan & Hampshire

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

Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 91 ALJR 402
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Oswald and Karrington [2016] FamCAFC 152
Stott & Holger and Anor [2017] FamCAFC 152
U v U (2002) 211 CLR 238

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

1[Mr Fernandez] (“the father”) and [Ms MacPherson] (“the mother”) have been unable to agree the parenting arrangements for their daughter [Child A] (“Child A”) who was born [in] 2015.
2Central to their dispute are the issues which arise because the father lives in [City A] and the mother has, since October 2016, lived with Child A in [City B] in [State A].
3It is common ground that at the time the parties separated they were living in [Town A] and that the mother unilaterally relocated to City B with Child A without telling the father of her plan to do so.

Background

4The father is a 44-year-old [security guard] who lives in [Suburb A], in the metropolitan area of City A. The mother is a 34-year-old [teacher] who lives in City B, State A.
5The parties met in [Town B] in early 2014 and began a relationship. They began living together in June 2014. Shortly thereafter, the father’s posting in Town B came to an end and it was necessary for him to apply for a transfer within [his employment].
6The parties moved to City A in August 2014, initially staying at the home of friends. After a couple of weeks, they moved into a rental property with the father’s brother. The father commenced work stationed at [Suburb B], and the mother commenced work as a teacher.
7There were issues associated with the parties sharing the rental property with the father’s brother, and in early 2015 they moved into a property at Suburb A owned by the father. By that time, the mother’s pregnancy had been confirmed.
8It is common ground that the mother struggled living in the city. With the consent of the father, she visited her family in City B for two weeks in May 2015, and accepted a…

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 FERNANDEZ and MACPHERSON

Details

AGLC: FERNANDEZ and MACPHERSON [2018] FCWA 12
Case: [2018] FCWA 12
Decision Date: 23 JANUARY 2018

CaseChat Overview and Summary

The case of Fernandez and MacPherson involved a dispute between the parents of a young child regarding parenting arrangements. The mother had unilaterally relocated with the child at the time of their separation, which led to the father seeking orders for the child to live equally with both parents. Additionally, the father requested that the mother be required to live within a 20 km radius of his home. The matter was heard in the Family Court of Australia.

The legal issues before the court were whether the mother's relocation was justified and whether the father's requests for specific parenting arrangements were in the best interests of the child. The court had to consider the impact of the mother's relocation on the child's relationship with both parents and assess the overall welfare of the child in making its decision.

In its judgment, the court held that the mother's relocation was justified as it was in the best interests of the child. The court found that the father's requests for specific parenting arrangements were not in the best interests of the child, as they would have disrupted the child's relationship with the mother and her new environment. The court emphasised the importance of maintaining a stable and consistent environment for the child, particularly at a young age, and noted that the father's requests would have caused significant upheaval in the child's life. The court ultimately decided that the child should continue to live primarily with the mother, with reasonable access to the father.

The final orders of the court were that the child would live primarily with the mother, with reasonable access to the father. The court did not impose any restrictions on the mother's residence, finding that the father's request for a 20 km radius was not in the best interests of the child. The court recognised the importance of maintaining a stable and consistent environment for the child and emphasised the need for both parents to work together to ensure the child's welfare.

Orders