FAMILY LAW – CHILDREN – International relocation – 4 year old child – Where parties commenced their relationship in Switzerland but then relocated to Australia – Where mother later returned to Switzerland – Where child has lived with each parent for extended periods, initially with mother in Switzerland and then with father in Australia – Where father is not prepared to live in Switzerland if the relocation is permitted – Where mother is not prepared to live in Switzerland if child remains in Australia – Where it has been agreed that parties are to have equal shared parental responsibility – Where it has been agreed that parties are to spend equal time with child if he remains in Australia – Where each party accepts that the child is the other party's "number one priority" and no issues of risk arise – Where neither party is child's unchallenged primary caregiver – Where mother did not suggest her capacity to parent child would be adversely affected if the relocation does not occur – Where mother possesses energy, imagination and resourcefulness that father does not – Conclusion reached that it is in child's best interests to remain in Australia and be cared for by both parents

FAMILY LAW – CHILDREN – Schooling – Where parties disagree about school child should attend if he is to live in Australia – Where child is attending a long-established, mainstream independent school – Where mother's preference is for child to attend a State School – Where father's parents have agreed to pay all fees associated with child's education at the independent school – Where mother is concerned father's parents may seek to exercise undue control over both parties' lives or the child's life – Where mother is concerned payment of substantial school fees by father's parents will lead to interference and imposition of conditions – Where there is no evidence that a change from the independent school to some other school would benefit child – Where there is no evidence that public education is superior to private education, or that private education is superior to public education – Conclusion reached that it is in child's best interests to continue at his present school

Legislation:

Family Court Act 1997 (WA) , ss 7A, 84, 84(3), 89AD, 66A, 66B, 66(1), 66(2), 66(3), 66C(2), 66C(3), 66C(4), 66C(5), 66(4)(c), 70A, 70A(4), 70DA, 89AA(1), 89AA(2), 89(1),

Family Law Act 1975 (Cth), ss 60B, 60CC(2), 60CC(3), 61DA(1), 65DAA(1)(b),

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr H Moser
Respondent: Ms T Farmer

Solicitors:

Applicant: Paterson & Dowding
Respondent: Dwyer Durack

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

AMS v AIF (1999) 199 CLR 160
Champness & Hanson [2009] FamCAFC 96
Collu & Rinaldo [2010] FamCAFC 53

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 GILLAM and LATCH

Details

AGLC: GILLAM and LATCH [2015] FCWA 34
Case: [2015] FCWA 34
Decision Date: 22 APRIL 2015

CaseChat Overview and Summary

Gillam and Latch were involved in a dispute concerning the relocation of their four-year-old child, who had lived with each parent for extended periods, initially with the mother in Switzerland and then with the father in Australia. The matter was heard in the Family Court of Australia, with the primary focus on whether the child should remain in Australia or return to Switzerland with the mother. Both parties agreed on equal shared parental responsibility and equal time with the child if he stayed in Australia.

The court was required to determine the best interests of the child in relation to his international relocation and the appropriate school he should attend if he remained in Australia. The legal issues included the potential impact of relocation on the child's stability, the importance of continuity in his upbringing, and the implications of different educational environments. The court examined factors such as the child's attachment to both parents, the parents' capacity to care for the child, and the availability of suitable educational options.

The court found that the child's best interests were served by remaining in Australia to be cared for by both parents. It was determined that the child had established a stable life in Australia and that neither parent was the unchallenged primary caregiver. The mother's concerns about potential undue influence from the father's parents were not substantiated, and the court found no evidence that a change in schools would benefit the child. The court concluded that the child should continue attending his current independent school, given the father's parents' commitment to covering the associated fees and the lack of evidence supporting the superiority of either public or private education.

The court's final orders included that the child remain in Australia and continue his education at the current independent school, with both parents maintaining equal shared parental responsibility and spending equal time with the child.

Orders