FAMILY COURT OF AUSTRALIA
| JURCHENKO & FOSTER | [2014] FamCAFC 127 |
| FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the Magistrate made orders preventing the mother from relocating the child’s residence from Perth to a town in the Pilbara – Whether it is appropriate for a judicial officer to provide a preliminary view before trial – Whether it is necessary for expert evidence to be provided before a judicial officer can make a finding about the likely effect of a relocation – Where the mother said during cross-examination she would remain in Perth if relocation was refused and where the Magistrate erred by proceeding on the basis that this was a proposal – Where the Magistrate erred by focussing on the maintenance of a meaningful relationship with both parents at the expense of a proper consideration of all other relevant factors – Where the Magistrate gave insufficient attention to the impact on the mother’s new family of the relocation being refused – Where the Full Court was satisfied that the Magistrate erred by failing to carry out a proper evaluation of the competing proposals – Appeal allowed – Matter remitted for rehearing – Costs certificates granted to both parties for the appeal and the rehearing |
| Family Law Act 1975 (Cth), ss 60CC, 61DA and 65DAA |
| AMS v AIF (1999) 199 CLR 160 Champness & Hanson (2009) FLC 93-407 D and SV (2003) FLC 93-137 Deiter & Deiter [2011] FamCAFC 82 Gronow v Gronow (1979) 144 CLR 513 Heaton v Heaton (2013) 48 Fam LR 349 McCall & Clark (2009) FLC 93-405 MRR v GR (2010) 240 CLR 461 Muldoon & Carlyle (2012) FLC 93-513 Mulvaney & Lane (2009) FLC 93-404 U v U (2002) 211 CLR 238 Yuill v Yuill [1945] 1 All ER 183 |
| APPELLANT: | Ms Jurchenko |
| RESPONDENT: | Mr Foster |
| FILE NUMBER: | PTW | 6320 | of | 2011 |
| APPEAL NUMBER: | WA | 28 | of | 2013 |
| DATE DELIVERED: | 18 July 2014 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Bryant CJ, Thackray and Duncanson JJ |
| HEARING DATE: | 3 April 2014 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 14 November 2013 |
| LOWER COURT MNC: | [2013] FCWAM 128 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Farmer |
| SOLICITOR FOR THE APPELLANT: | Terrace Law |
| COUNSEL FOR THE RESPONDENT: | Mr Smith |
| SOLICITOR FOR THE RESPONDENT: | O’Sullivan Davies |
Orders
The appeal be allowed.
The matter is remitted for hearing by the Magistrates Court of Western Australia by a Magistrate other than Acting Magistrate Kaeser.
The orders made by Acting Magistrate Kaeser on 14 November 2013 be set aside, this order to take effect upon the commencement of the rehearing.
That the Court grants to the appellant mother a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to…
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- Jurchenko & Foster [2014] FamCAFC 127
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- [2014] FamCAFC 127
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CaseChat Overview and Summary
Jurchenko & Foster is a case involving a dispute between parents over the relocation of their child, with the mother seeking to relocate to India and the father objecting. The case was heard in the Family Court of Australia. The central legal issue before the court was whether the father's objection to the relocation should be considered in light of the possibility that he might also relocate to be closer to the child. The court had to determine whether the father's reasons for not relocating were adequately explored and whether the mother's proposal for a contact regime should be based on the assumption that the father would not relocate.
The court examined the principle that where the paramount consideration is the child's best interests, it is not always appropriate to strictly adhere to adversarial procedures. The court noted that in previous cases, it was suggested that if one parent wishes to move with the child to a distant location, the other parent should also be expected to consider relocating to be near the child. The court found that the father's reasons for not relocating should have been explored in evidence, and the validity of the assumption that he would not move should have been examined. The court also noted the inherent sexism in assuming that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
Ultimately, the court found that the father's objections to the relocation should be considered in light of the possibility that he might also relocate. The court also found that the mother's proposal for a contact regime should be based on the assumption that the father would not relocate only if he showed some willingness to do so. The court ordered the matter to be stood over to allow the parties to present further proposals that took into account the possibility of the father relocating.
The court examined the principle that where the paramount consideration is the child's best interests, it is not always appropriate to strictly adhere to adversarial procedures. The court noted that in previous cases, it was suggested that if one parent wishes to move with the child to a distant location, the other parent should also be expected to consider relocating to be near the child. The court found that the father's reasons for not relocating should have been explored in evidence, and the validity of the assumption that he would not move should have been examined. The court also noted the inherent sexism in assuming that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
Ultimately, the court found that the father's objections to the relocation should be considered in light of the possibility that he might also relocate. The court also found that the mother's proposal for a contact regime should be based on the assumption that the father would not relocate only if he showed some willingness to do so. The court ordered the matter to be stood over to allow the parties to present further proposals that took into account the possibility of the father relocating.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
We should, however, note that in U v U (2002) 211 CLR 238, Hayne J, with the concurrence of Gleeson CJ and McHugh J, said: 175.When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. (emphasis added) Similarly, in U v U, Gaudron J said:35.Where, as in the present case, the paramount consideration is the child's best interests, it is not always appropriate that the issues be explored and the evidence revealed strictly in accordance with the adversarial procedures that apply in party-party litigation. That being so, it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility … seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father’s choice as to where he lives is beyond challenge in a way that a mother’s is not. The fact neither party had a formal proposal dealing with the time the father would spend with the child if he decided to relocate should not have prevented the mother’s counsel being permitted to cross-examine him about why he could not move. In our view, until such time as the father showed some willingness to move it might appear somewhat futile for the mother to propose a contact regime based on him being resident in Town D. It might also reasonably be thought that there would appear to be little, if any, reason why the father’s time with the child in such circumstances would be any different to the times each party was proposing if the mother stayed in Perth. Faced now not only with his Honour’s “preliminary view”, but also with his veto against asking questions about why the father could not move to Town D, counsel for the mother asked for time to present a further minute. The matter was then stood over to the next day, when the mother’s counsel provided “Version 2”, which contemplated the father moving to Town D. On being presented with “Version 2”, his Honour immediately observed it contained no provision for what was to occur if the relocation was refused, to which counsel for the mother responded by correctly pointing out that the father’s case similarly contained no proposal for what was to occur if the relocation was allowed. (Transcript, 3 October 2013, p 2)
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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