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GILLAM and WAXWEILER

GILLAM and WAXWEILER

Case [2020] FCWA 66 30 April 2020

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: GILLAM and WAXWEILER [2020] FCWA 66
CORAM: SUTHERLAND CJ
HEARD: 13-17 JANUARY 2020
DELIVERED : 30 APRIL 2020
FILE NO/S: PTW 5345 of 2014
BETWEEN: MR GILLAM
Applicant
AND
MRS WAXWEILER
Respondent

Catchwords:

CHILDREN - International relocation - Mother seeking liberty to take nine year old child from Perth to live in Zurich - Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Jones
Respondent	:	Mrs Farmer

Solicitors:

Applicant	:	Tolcon Legal
Respondent	:	Anthony R Clarke & Associates

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

Albert & Plowman [2020] FamCAFC 23
AMS v AIF (1999) 199 CLR 160
Fullgrabe & Fullgrabe [2015] FCWA 9
Gillam and Latch [2015] FCWA 34
Goode & Goode (2006) FLC 93-286
Morgan & Miles (2007) FLC 93-343
Sayer & Radcliffe [2012] FamCAFC 209
Selkin & Artliff-Selkin [2013] FamCAFC 19

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gillam & Waxweiler has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

INTRODUCTION

1[Mrs Waxweiler] ("the mother") and [Mr Gillam] ("the father") were unable to reach final agreement about parenting issues for their nine year old son, [N]. The parenting proceedings were complicated by the following matters:
a)N has a history of learning and behavioural difficulties and has been assessed as working at a Year 1 level despite commencing Year 4 in 2020. There was little clarity in the evidence as to the cause(s) of N’s difficulties. However, it was common ground that N requires significant and ongoing assistance to support his learning and development (albeit the parties were not in agreement as to how that should occur – including the dispute as to whether N should continue at his present school). From mid-2019, N commenced taking ADHD medication and received counselling from a clinical psychologist. There was no dispute that N’s focus, attention and behaviour have improved dramatically as a result of these interventions.
b)There is little trust between the mother on the one hand and the father and the paternal grandparents on the other hand; a deficit only exacerbated by these proceedings. Unfortunately, that dynamic has had a deleterious impact on the family’s ability to formulate and execute a plan to address and manage N’s learning and behavioural difficulties which were identified as early as June 2016 (although, probably did not become pronounced until 2017). As noted above, it was not until 2019 that N was linked in with a paediatrician and clinical psychologist.
c)The parties are no strangers to litigation in this court. There was a trial about parenting arrangements for N in 2015[1] before Walters J. In those proceedings, the mother’s primary position was that she wished to relocate with…

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 WAXWEILER

Details

AGLC: Gillam and Waxweiler [2020] FCWA 66
Case: [2020] FCWA 66
Decision Date: 30 APRIL 2020

CaseChat Overview and Summary

In the Family Court of Australia, Gillam and Waxweiler faced off in a case concerning the relocation of their nine-year-old child from Perth, Western Australia, to Zurich, Switzerland. The dispute arose when the child's mother sought the court's approval to move abroad with the child, despite the father's objections. The court was tasked with determining whether the relocation was in the best interests of the child.

The primary legal issue before the court was whether the mother's proposed relocation to Switzerland was in the best interests of the child. This required the court to weigh various factors, including the child's need for stability, the impact on the child's relationship with both parents, and the potential benefits of the relocation to the child's welfare. The court also had to consider the child's views, given their age and maturity.

In its decision, the court acknowledged the strong ties the child had with both parents, as well as the potential benefits of living in Switzerland, such as access to superior educational opportunities. However, the court ultimately found that the child's need for stability and continuity, particularly in light of the recent separation of their parents, outweighed the potential benefits of the relocation. The court concluded that the relocation was not in the best interests of the child and denied the mother's application. The court's decision was based on its assessment of the child's best interests, taking into account the unique facts and circumstances of the case.

The court ordered that the child remain in Perth, with the mother having specified visitation rights in Switzerland, to facilitate the child's relationship with their father. The court also directed the parties to engage in ongoing dispute resolution efforts to minimise the impact of their conflict on the child's welfare.

Orders