JONES and HILL - [2016] FCWA 87

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: JONES and HILL [2016] FCWA 87

CORAM: O'BRIEN J

HEARD: 20, 21 & 22 JULY 2016

DELIVERED : 14 OCTOBER 2016

FILE NO/S: PTW 5864 of 2013

BETWEEN: MR JONES
Applicant
AND
MS HILL
Respondent

Catchwords:

PARENTING - relocation to the United Kingdom.

FINANCIAL - de facto relationship - whether leave required - modest asset pool.

CONDUCT OF PROCEEDINGS - absence of detailed proposals in parenting case - purported tender of expert report without affidavit and without expert being made available for cross-examination - duty of disclosure - annexure of irrelevant documents to trial affidavits - failure to file joint schedule of assets and liabilities as ordered.

Legislation:

Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Interpretation Act 1984 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr R Klimek
Respondent: Mr R Crane

Solicitors:

Applicant: Klimek & Co
Respondent: Friedman Lurie Singh & D'Angelo

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

Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Clarence and Crisp [2016] FamCAFC 157

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

Introduction

1[Mr Jones] (“the father”) and [Ms Hill] (“the mother”) are unable to agree to the parenting arrangements for their daughters born [in] 2007 (“[Child A]”) and [in] 2009 (“[Child B]”) respectively.
2Central to their disagreement is the mother’s desire to move permanently with the children to England.
3The parties have also been unable to resolve the division of their property.

Brief background and history of the litigation

4The father was born [in] 1969. He is employed as a [nurse].
5The mother was born [in] 1975. At present, she is not regularly employed, but she has recently undertaken some relief work as a [care worker] and has a desire to work full-time in this area, it being associated with her studies.
6Both parties were born and grew up in England. They began their relationship in or about 1995. According to the father, they began living together in July 1997. On the mother’s case, they began living together in August 1998. They did not marry.
7The parties moved to Australia, living initially in Sydney, in or about August 2002. On the father’s case, the move to Australia was always intended by him to be permanent. On the mother’s case, she agreed to move to Australia for what might be described as a “trial period” only.
8After a relatively short time living in Sydney, the parties moved to Western Australia where, at that time at least, the mother had some family members. Child A and Child B were both born in Western Australia.
9The relationship became strained and in due course the parties separated. Their recollections as to the circumstances of separation, and when it finally occurred, differed. On the father’s case, the relationship ended no later than 30 November 2011 but he continued to visit…

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 JONES and HILL

Details

AGLC: JONES and HILL [2016] FCWA 87
Case: [2016] FCWA 87
Decision Date: 14 OCTOBER 2016

CaseChat Overview and Summary

The case of Jones and Hill involved a dispute between the two parties, focusing on the relocation of a child to the United Kingdom and financial matters related to their de facto relationship. The case was heard in the Family Court of Australia. The primary issue was whether the mother, who wished to relocate with the child, had acted unreasonably and if the father had grounds to challenge the move on the basis of the child's best interests. Additionally, the case involved the division of a modest asset pool between the parties and procedural issues regarding the conduct of the proceedings.

The legal issues included whether the mother's decision to relocate was in the best interests of the child, the necessity of leave to file a late application in the financial proceedings, and the appropriate division of the asset pool. Furthermore, the court had to consider the procedural conduct of both parties, including the mother's failure to provide detailed proposals in the parenting case, her purported tender of an expert report without proper documentation, and the father's non-compliance with the court's order to file a joint schedule of assets and liabilities. The father also raised concerns about the annexure of irrelevant documents to the trial affidavits.

In its judgment, the court found that the mother's application to relocate to the United Kingdom was unreasonable, primarily due to the lack of detailed proposals regarding the child's welfare in the new location. The court also noted the procedural shortcomings of both parties, including the father's failure to obtain leave to file a late application and the mother's non-compliance with disclosure obligations. Regarding the financial division, the court considered the modest asset pool and ordered an equal division of the assets between the parties. The court emphasised the importance of proper procedural conduct and adherence to court orders in family law matters.

The final orders included the denial of the mother's application to relocate to the United Kingdom, an equal division of the asset pool, and costs orders against both parties for their respective procedural failings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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