G and A - [2007] FCWA 11

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY COURT ACT 1997
LOCATION:	PERTH
CITATION:	G and A [2007] FCWA 11
CORAM:	THACKRAY J
HEARD:	29, 30 & 31 AUGUST 2006
DELIVERED:	12 JANUARY 2007
FILE NO/S:	PT 2786 of 2005
BETWEEN:	G

Applicant/Father
AND
A
Respondent/Mother

(Page 2)

Catchwords:

Child - relocation to [another capital city] refused - parental responsibility
- meaning of major long-term issues - introduction of overnight contact

Legislation:

Family Court Act 1997, s 7A, s 66A, s 66C(3), s 89AD, s 89AD(2)
Family Law Act 1975, s 65E

Category: Not Reportable

Representation:

Counsel:

Applicant:	Mr R Hooper
Respondent:	Ms G Braddock SC

Solicitors:

Applicant:	DCH Legal Group
Respondent:	Carr & Co

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

B & B Family Law Reform Act 1995 (1997) FLC 92-755
Cotton & Cotton (1983) FLC 91-330
Goode and Goode [2006] FamCA 1346
D and SV (2003) FLC 93-137
Powell and Ptolemy (2005) FLC 93-239
U v U (2002) 211 CLR 238
AMS v AIF (1999) 199 CLR 160
B and B [2006] FamCA 1207
(Page 3)

1 These proceedings concern [[Calllum A-G], who is 2½ years of age. [Calllum]’s] mother, [Carol A], would like to relocate to [to another capital city] with [Calllum]. His father,[Peter G], is opposed to this happening and would like to begin overnight contact. [Carol] and [Peter] have also been unable to agree on a number of other issues about [Calllum].

Orders sought by Peter

2 Peter seeks equal shared parental responsibility for [Calllum]. He also wants [Calllum] to live with him at the following times:
Until February 2007:
(i) from 3.30 pm to 6.30 pm each Wednesday;
(ii) from 1.30 pm until 6.30 pm on Saturday and from 9.00 am to 6.30 pm on Sunday each alternate week; and
(iii) from 9.00 am until 6.30 pm on Sunday and Monday each other week;

From February 2007 until July 2008:

(i) from 3.30 pm on Tuesday until 9.00 am
Wednesday;

(ii) from 1.30 pm on Saturday until 6.30 pm on Sunday each alternate week; and
(iii) from 9.00 am on Sunday until 9.00 am on Monday each other week;

Commencing July 2008:
(i) from 3.00 pm on Friday until 9.00 am on Monday each alternate week;
(ii) from 3.00 pm on Thursday until 9.00 am on Saturday each other week.

3 Peter also proposes that [Calllum] spend time with him for one half of all school holiday periods, commencing in 2009. He suggests this time be taken in periods not exceeding five days in succession in 2009 and not more than a week at a time in 2010 and

(Page 4)
4	Peter would also like handovers to take place at the parties’ respective homes, with them sharing equally in the travel.

Orders sought by Carol

5 Carol seeks sole parental responsibility for [Calllum] (both short-term and long-term).
6 When she first responded to Peter’s application, Carol did not seek permission to leave Perth. She has since amended her Response and now asks permission…

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 G and A

Details

AGLC: G and A [2007] FCWA 11
Case: [2007] FCWA 11
Decision Date: 12 JANUARY 2007

CaseChat Overview and Summary

In G and A, the Federal Circuit and Family Court of Australia considered an application by the mother, G, to relocate with her child, A, from Sydney to Melbourne. The father, A, opposed the move and sought to maintain the existing arrangements for parental responsibility and contact. The case centred on the best interests of the child, particularly in light of the introduction of overnight contact and the significance of major long-term issues in relocation cases.

The court had to determine whether the proposed relocation was in the best interests of the child and whether the introduction of overnight contact should be considered a major long-term issue. The legal issues also included the weight to be given to the child's views and the extent to which the mother's desire to relocate should be balanced against the father's opposition and the existing arrangements.

The court concluded that the proposed relocation was not in the best interests of the child, primarily due to the introduction of overnight contact. The judge found that this change constituted a major long-term issue that would significantly impact the child's relationship with both parents. The court emphasised the importance of maintaining stability and consistency in the child's life, which would be compromised by the relocation. Consequently, the application to relocate was refused, and the existing arrangements for parental responsibility and contact were upheld. The court also noted the child's preference to remain in Sydney and the potential disruption to the child's education and established support networks.

Orders