"Je" v "RS"

[2003] WASCA 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION : "JE" -v- "RS" [2003] WASCA 46

CORAM : MURRAY J

ANDERSON J

STEYTLER J

HEARD	:	4 MARCH 2003
DELIVERED	:	14 MARCH 2003
FILE NO/S	:	FUL 66 of 2002

BETWEEN : "JE"

Appellant

AND

"RS"

Respondent

Catchwords:

Practice and procedure - Ambit of appeal - No point of general importance

Legislation:

Nil

Result:

Interim judgment

[2003] WASCA 46

Category: B

Representation:

Counsel:

Appellant	:	Ms J Crisford SC
Respondent	:	Ms E L M Brownlie

Solicitors:

Appellant	:	Legal Aid of Western Australia
Respondent	:	Paterson & Dowding

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

AMS v AIF (1999) 199 CLR 160

Case(s) also cited:

A & J, In the Marriage of (1995) 127 FLR 79
A v A: Relocation Approach (2000) FLC 93-035
Bennett, In the Marriage of (1990) 102 FLR 370
Gronow v Gronow (1979) 144 CLR 513
Paskandy v Paskandy (1999) 154 FLR 437

State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1999)

73 ALJR 306

Sun Alliance Insurance Ltd v Massoud [1989] VR 8
U v U (2002) FLC 93-112

[2003] WASCA 46

JUDGMENT OF THE COURT

1. JUDGMENT OF THE COURT: When this hearing began at first instance the main question was whether the child should live with the mother or the father. Among the many matters bearing on that question was the mother's wish to go to Queensland to live, taking the child with her. During the course of the hearing two significant things happened. The father ultimately (although not without hesitation) accepted that it was in the best interests of the child for as long as the mother lived in the Perth metropolitan area, that the child should live with the mother. Secondly, the mother said that whilst she did want to go to Queensland to live permanently she would not do so if she could not take the child with her.

2              It is perhaps not altogether surprising that in light of these

developments the Judge began to see the case as merely a "relocation" and "contact" case - a case in which the issue was whether the mother as custodial parent should be allowed to relocate the child to Queensland.

3              It may be implicit in AMS v AIF (1999) 199 CLR 160 that this was not a permissible approach unless it was absolutely clear that the father had given up all claims to be the residential parent regardless of where the mother lived. Unless and until that happened the Judge was obliged to approach the case on the basis of competing claims by the mother and the father to be the residential parent. On that view, the Judge had to treat the mother's case as a claim for residence regardless of whether she lived in the Perth metropolitan area or in Queensland; and had to treat the father's case as a competing claim for residence, albeit not pressed if the mother was to reside in Perth.

4              This would require a consideration of the issue of residence of the

child on the footing that the mother was to move to Queensland. Whilst this would involve of necessity consideration of the acceptability of the mother's proposals for contact between the child and the father when she was in Queensland with the child, it would also require the Judge to keep firmly in mind and to keep under active consideration the father's competing claim that the child's best interests required that he be the residential (custodial) parent if the mother moved to Queensland.

1. This is not the approach that was taken. The Judge really put aside the whole question of residence. Her Honour said:

   "If the mother decided to relocate to Brisbane with or without [the child], then the father says [the child] should reside with he and his parents. The mother has stated that she will not

[2003] WASCA 46

JUDGMENT OF THE COURT

return to Brisbane without [the child], therefore, I do not need to consider the father's proposal that [the child] reside with him."

6              The father's dissatisfaction with the judgment is manifold but it is

notable that when this appeal was commenced the first ground of appeal
included the plea that:

"The learned trial Judge erred in law in failing to determine the father's application for residence by considering whether the interests of the child were better served by him residing with the father in Perth…"

7              Counsel for the father, Ms Crisford SC, informed us by her outline of

submissions, par 4, that the ground would be "modified" in light of the concession which had been made at trial by counsel for the father (see AB417). We gathered from what she told us in opening the appeal (T/3) that Ms Crisford understood that the concession in question was to the effect that there was indeed no need for the Judge to consider the father's competing claim for residence because the father accepted that it was in the child's best interests that the mother have residence. Certainly that is how the trial Judge approached the matter.

8              In light of the above it is necessary for us to know whether

Ms Crisford's statement reflected her understanding that she was bound not to press ground 1 because of the concession that had been made by or on behalf of the father at trial, or whether it reflected her instructions. It may be that the concession which was made by counsel for the father at trial has been misunderstood. The concession the father actually made in evidence was only that for so long as the mother remained in Perth it was in the child's best interests that he reside with the mother (see AB150 - 150). If that was indeed as far as the concession went, counsel was under no obligation to abandon the first ground of appeal.

9              We need to know whether ground 1 is indeed abandoned, whether it

is to be reinstated in its full effect, or, if it is "modified", how the
re-worded ground is expressed.

10            The matter is best remedied by inviting the parties appear by counsel

and make any further submissions they wish in respect of the matters of
our concern.