Gordon and Westmead (No. 2) - [2012] FamCA 546

FAMILY COURT OF AUSTRALIA

GORDON & WESTMEAD (NO. 2)

[2012] FamCA 546

FAMILY LAW – CHILDREN – RELOCATION - BEST INTERESTS OF THE CHILD – where the child having a meaningful relationship with both parents is the only relevant primary consideration in the proceedings – where the presumption of equal shared parental responsibility applies - where the Court orders that the child live with the mother and spend substantial and significant time with the father, which can only occur in Australia, despite mother’s desire to relocate with the child to the USA - where the child has a meaningful relationship with both parents – where relocation would deny the child a qualitatively meaningful relationship with the father – where expert evidence indicated the father would encounter difficulty relocating to, and perhaps even visiting, the USA – where child’s views were not taken into account due to young age

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61DA,62G, 64B , 65AA, 65D, 65DAA, 65DAC and 65DAE

AMS & AIF (1999) 199 CLR 160
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
McCall & Clark (2009) FLC 93-405
MRR v GR (2010) 240 CLR 461
Sampson v Hartnett (No. 10) (2007) FLC 93-350
Slater & Light (2011) 45 Fam LR 41
Starr & Duggan (2009) FamCACF 115
Taylor v Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238

APPLICANT:

Mr Gordon

RESPONDENT:

Ms Westmead

FILE NUMBER:

SYC

2433

2011

DATE DELIVERED:

18 July 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

18, 19 & 20 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G. Gould

SOLICITOR FOR THE APPLICANT:

McDonell Milne Toltz Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr P. Sansom

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

All former parenting orders and injunctions relating to the child K, born … October 2007 (“the child”), are discharged.
The parties shall have equal shared parental responsibility for the child.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure the child spends time with the father as follows, unless otherwise agreed:
(a)Until commencement of NSW public school Term 1 in 2013:
(i)From 6.00 pm Saturday until 6.00 pm on Monday; and
(ii)From 3.00 pm on 19 December 2012 until 3.00 pm on Christmas Day 2012.
(b) Thereafter:
(i)During NSW public school terms:
(A)Each alternate weekend from 6.00 pm Friday until 6.00 pm Sunday, commencing on the first Friday of each school term;
(B)On Thursday each week, from the conclusion of school until 7.00 pm;
(ii)During the NSW public school holidays at the conclusion of Terms 1 and 3, commencing at 6.00 pm on the last day of school in those terms and concluding at 6.00 pm on the second last day before the first day of school in the following terms;
(iii)During the NSW public school holidays at Christmas:
(A)For a period of seven days during the holidays in…

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.

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Details

Case: [2012] FamCA 546
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard a dispute between Mr. Gordon (applicant father) and Ms. Westmead (respondent mother) concerning the living arrangements for their young child, K. The central issue was the mother's desire to relocate with K to the USA, which the father opposed, proposing instead that K live with him in Australia. Both parents were described as competent and caring, with K having secure and loving relationships with each of them.

The court was required to determine the parenting arrangements for K, considering the paramountcy of the child's best interests. Specifically, the court had to assess whether the presumption of equal shared parental responsibility applied and how to best facilitate K's meaningful relationship with both parents, particularly in light of the mother's proposed relocation to the USA and the father's opposition to it. Expert evidence regarding the father's potential difficulties in relocating or visiting the USA was also a relevant consideration.

Applying the principles of the *Family Law Act 1975* (Cth), the court found that maintaining K's meaningful relationship with both parents was the primary consideration. The court noted that relocation to the USA would likely deny K a qualitatively meaningful relationship with his father. Given the child's young age, his views were not taken into account. The court ordered that K live with the mother and spend substantial and significant time with the father, with this time to occur within Australia.

The court discharged all former parenting orders and injunctions and confirmed equal shared parental responsibility. K was ordered to live with the mother, with detailed provisions for the father to spend substantial and significant time with K. These arrangements were designed to ensure K maintained a meaningful relationship with both parents, with specific provisions for communication and travel. The mother retained K's USA passport, and the father retained K's Australian passport.

Orders