KILEY and TAPPING - [2020] FCWA 174

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: KILEY and TAPPING [2020] FCWA 174
CORAM: SUTHERLAND CJ
HEARD: 10-12 AUGUST 2020
DELIVERED : 30 SEPTEMBER 2020
FILE NO/S: PTW 6187 of 2019
BETWEEN: MR KILEY
Applicant
AND
MS TAPPING
Respondent

Catchwords:

CHILDREN - Interstate relocation - Mother seeking liberty to take 18 month old child to [the Eastern States] - Case turns on its own facts

Legislation:

Family Court Act (WA) 1997

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Rynne
Respondent	:	Ms Anderson

Solicitors:

Applicant	:	Oswald Legal
Respondent	:	Stellan Family Law

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

AMS v AIF (1999) 199 CLR 160

Fullgrabe & Fullgrabe [2015] FCWA 9

Godfrey & Sanders [2007] FamCA 102

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Morgan & Miles (2007) FLC 93-343

Sayer & Radcliffe [2012] FamCAFC 209

Selkin & Artliff-Selkin [2013] FamCAFC 19

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kiley and Tapping has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

INTRODUCTION:

1[Ms Tapping] (the “mother”) and [Mr Kiley] (the “father”) were unable to reach final agreement about parenting issues concerning their son, [Child A], who was 1½ years old at the time of trial. The father sought that the parties and Child A continue to live in [Regional Town A], [Western Australia], where the father is settled and has a comfortable existence, including: full-time, well-renumerated employment; good quality subsidized rental accommodation; and daily support from his extended paternal family. On the other hand, the mother has no such comforts available to her in Regional Town A. Since separation she has effectively been homeless for periods of time, has no employment and no family support. The mother instead sought that she be permitted to relocate with Child A to [Regional Town B], [in the Eastern States], where her family resides and where she would have the benefit of free accommodation, as well as financial and other supports from them.
2During the trial, the parties reached agreement in relation to certain parenting orders on a final basis, including that the parties have equal shared parental responsibility for Child A and that he live with the mother. On 10 August 2020, I made consent orders in the terms of the parties’ Joint Minute of Consent Orders. However, the key parenting issues that remained in dispute were as follows:
a)Whether the mother should be permitted to relocate with Child A to Regional Town B or remain in Regional Town A.
b)The father’s time with Child A, in the event that: (1) the mother and Child A continued to live in Regional Town A; (2) the mother and Child A moved to reside in Regional Town B but the…

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 KILEY and TAPPING

Details

AGLC: KILEY and TAPPING [2020] FCWA 174
Case: [2020] FCWA 174
Decision Date: 30 SEPTEMBER 2020

CaseChat Overview and Summary

The case of Kiley and Tapping involved a dispute between the mother, Kiley, and the father, Tapping, over the relocation of their 18-month-old child to another state. The case was heard in the Family Court of Australia, where Kiley sought permission to move the child from their current residence in Western Australia to Victoria. Tapping opposed the relocation on the grounds that it would significantly impact the child's relationship with him and other family members.

The court was tasked with determining whether the proposed relocation was in the child's best interests. This required the court to consider various factors, including the potential benefits and detriments of the move, the child's relationship with both parents, and the child's current and proposed living arrangements. The court also had to weigh the mother's desire for a fresh start and the potential for improved living conditions against the father's concerns about the impact on the child's relationship with him and his family.

In reaching its decision, the court examined the specific circumstances of the case, including the strength of the child's relationship with both parents and the potential for the relocation to either enhance or harm that relationship. The court also considered the mother's reasons for wanting to move and the potential benefits to the child, such as access to better educational and healthcare facilities. Ultimately, the court concluded that the proposed relocation was in the child's best interests, as it would provide the child with a more stable and supportive living environment, despite the potential challenges it would pose to the father's relationship with the child.

The court ordered that Kiley be granted permission to relocate the child to Victoria, subject to specific conditions designed to facilitate ongoing contact between the child and Tapping. These conditions included a requirement for Kiley to facilitate regular visits and communication between the child and Tapping, as well as provisions for the child to spend extended periods of time with Tapping during school holidays and other agreed-upon periods.

Orders