H v L - [2000] FamCA 752

[2000] FamCA 752

FAMILY LAW ACT 1975

IN THE FULL COURT OF
THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal No. EA 118 of 1999
File No. PA 3643 of 1997

IN THE MARRIAGE OF:

H Appellant Wife

AND

L Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

BEFORE:  Nicholson CJ, Ellis and Coleman JJ
DATE OF HEARING:  8 May 2000
DATE OF JUDGMENT:                1 August 2000

APPEARANCES: Mr J. Lloyd of Counsel, instructed by Champion Legal, Solicitors, Level 3, 60 Phillip Street Parramatta NSW 2150 appeared for the Appellant Wife.
Mr P. Batey and Mr A. Givney of Counsel, instructed by Judith Wickham & Associates, Solicitors, 110 George Street Parramatta NSW 2150 appeared for the Respondent Husband.

H and L  Appeal No. EA 118 of 1999
Coram:  Nicholson CJ, Ellis and Coleman JJ
Date of Hearing:       8 May 2000
Date of Judgment:    1 August 2000

Catchwords: Family Law - Residence - Planned relocation of mother - Mother not to relocate as would restrict father’s contact with children - AIF v AMS (1999) FLC 92-852; Paskandy v Paskandy (1999) FLC 92-878 and A v A: Relocation Approach [2000] FamCA 751 considered and applied; Martin v Matruglio (1999) FLC 92-876 considered - Correct approach to relocation cases

This was an appeal by the mother against orders made by Flohm J. on 30 November 1999, as a result of which the mother was to have residence of the children of the marriage and the father was to have liberal contact with them. The orders also restrained the mother from moving the children’s residence from the Sydney metropolitan area without the written consent of the father or the Court. The wife’s proposal to relocate with the children from Sydney to Lismore was a central issue both before the trial Judge and on appeal.

The parties commenced cohabitation in 1983 and married in 1989. The parties separated in 1996 and were divorced in July 1997. There are two children of the marriage, S, aged 8 at the time of trial, and C, aged 6.

The trial Judge undertook an extensive analysis of the evidence, including examination of the parties’ respective circumstances and proposals, the mother’s reasons for relocation, the distance and costs associated with the relocation proposal, the children’s wishes, the effect of the proposed change on the children’s circumstances and the parents’ relationship with the children.

Her Honour observed that in parenting orders cases such as the present, the best interests of the child are to be regarded as the paramount consideration and referred to s 68F(2) of the Family Law Act and the objects of Part VII. Her Honour concluded that although the mother’s interests and desires for relocation were legitimate, the children’s interests would best be served by them living in an area where they could have frequent contact with both parents. Accordingly she made the orders against which the mother has appealed.

The mother submitted on appeal:-

That the evidence before the Court did not entitled the trial…

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 H v L

Details

AGLC: H v L [2000] FamCA 752
Case: [2000] FamCA 752
Decision Date: 1 August 2000

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia heard an appeal in the matter of *H v L*. The dispute concerned an application for an order for the recovery of a child, brought by the father (H) against the mother (L). The primary judge had dismissed the father's application.

The central legal issue before the Full Court was whether the primary judge had erred in dismissing the father's application for the recovery of the child. This required the Court to consider the principles governing applications for the recovery of children under relevant legislation, and to assess whether the primary judge had properly applied those principles to the facts of the case.

The Full Court found that the primary judge had failed to properly consider the paramountcy of the child's welfare and the specific legislative requirements for an order for the recovery of a child. The Court emphasised that the primary judge's decision was based on an incorrect understanding of the onus of proof and the factors to be taken into account. The Court allowed the appeal, setting aside the primary judge's order and remitting the matter back to the Family Court for redetermination in accordance with the correct legal principles.

Orders