FAMILY COURT OF AUSTRALIA
| MOLLOY & REID | [2018] FamCAFC 89 |
| FAMILY LAW – APPEAL – CHILDREN – International relocation – Where the mother was not permitted to relocate with the children from Queensland to New Zealand – Whether the primary judge erred in creating a “checklist” of issues and by reciting dicta in Morgan & Miles (2007) FLC 93-343 – Deiter & Deiter [2011] FamCAFC 82 and MRR v GR (2010) 240 CLR 461 considered – Held there was no error in the primary judge paraphrasing the law or developing a list of issues with the assistance of the parties – Jurchenko & Foster (2014) FLC 93-598 considered – Held primary judge had regard to s 65DAA(5) and the essential basis on which his decision rested could be understood – No error in the attribution of weight to the father’s behaviour – The primary judge’s focus upon and findings regarding the “diminishment” of the children’s relationship with the father did not amount to error – Held the mother’s case did not fail because she did not present “compelling reasons” for relocation – Where the primary judge was satisfied that the children would maintain a “meaningful relationship” with both parents if the relocation was permitted but found the father’s proposal was in the best interests of the children – Held the primary judge evaluated the benefits and detriments associated with relocation and did not treat the appellant mother’s fall-back position as a “proposal” – U v U (2002) 211 CLR 238 considered – Appeal dismissed – Timetable set out for the filing of costs submissions. FAMILY LAW – APPEAL – Cross appeal – Discrete issue concerning a notation to an order – Held no error and therefore no basis to amend the notation – Cross appeal dismissed. |
| Family Law Act 1975 (Cth) s 65DAA |
| Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Boyle & Zahur and Anor (2017) FLC 93-814; [2017] FamCAFC 263 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Deiter & Deiter [2011] FamCAFC 82 Heaton v Heaton (2012) 48 Fam LR 349; [2012] FamCAFC 139 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Jurchenko & Foster (2014) FLC 93-598; [2014] FamCAFC 127 Morgan & Miles (2007) FLC 93-343; [2007] FamCA 1230 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 SCVG & KLD (2014) FLC 93-582; [2014] FamCAFC 42 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 U v U (2002) 211 CLR 238; [2002] HCA 36 |
| APPELLANT/CROSS RESPONDENT: | Ms Molloy |
| RESPONDENT/CROSS APPELLANT: | Mr Reid |
| FILE NUMBER: | TVC | 55 | of | 2016 |
| APPEAL NUMBER: | NA | 58 | of | 2017 |
| DATE DELIVERED: | 11 May 2018 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Murphy & Aldridge JJ |
| HEARING DATE: | 8 February 2018 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 26 September 2017 |
| LOWER COURT MNC: | [2017] FamCA 760 |
REPRESENTATION
| COUNSEL FOR THE |
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- AGLC
- Molloy & Reid [2018] FamCAFC 89
- Case
- [2018] FamCAFC 89
- Decision Date
CaseChat Overview and Summary
The legal issues addressed in the appeal were whether the primary judge erred in creating a checklist of issues and by citing certain dicta, and whether the primary judge's focus on the diminishment of the children's relationship with the father constituted an error. Additionally, the court considered whether the mother's case failed due to the absence of compelling reasons for relocation, and if the primary judge correctly evaluated the benefits and detriments associated with the relocation.
The court found no error in the primary judge's approach, holding that the judge had appropriately paraphrased the law and developed a list of issues with the assistance of the parties. The court also determined that the primary judge's focus on the diminishment of the children's relationship with the father did not amount to an error, and that the judge had correctly evaluated the benefits and detriments associated with the relocation. The court held that the mother's case did not fail because she did not present compelling reasons for relocation, and that the primary judge was satisfied that the children would maintain a meaningful relationship with both parents if the relocation was permitted. The appeal and cross-appeal were dismissed, and a timetable was set out for the filing of costs submissions.
The orders of the court were as follows: the application in an appeal filed on 24 January 2018 was dismissed, the appeal was dismissed, and the cross-appeal was dismissed. The respondent was required to file and serve submissions in support of any application for costs in relation to the appeal within 14 days of the date of the order. If the respondent filed and served submissions in accordance with this order, the appellant was required to file and serve submissions in response and in support of any application for costs in relation to the cross-appeal within 14 days of service of the respondent's submissions. If the appellant filed and served submissions in accordance with this order, the respondent was at liberty to file and serve submissions in reply within seven days of service of the appellant's submissions. Subject to any written submissions to the contrary, any applications for costs were to be determined in chambers without the necessity for appearance.
Orders
Orders of the court
1.
The Application in an Appeal filed on 24 January 2018 be dismissed.
2.
The appeal be dismissed.
3.
The cross-appeal be dismissed.
4.
The respondent file and serve submissions (not exceeding five pages) in support of any application for costs in relation to the appeal within 14 days of the date of this order.
5.
In the event the respondent files and serves submissions in accordance with Order 4, the appellant shall file and serve submissions (not exceeding five pages) in response and in support of any application for costs in relation to the cross-appeal within 14 days of service of the respondent’s submissions.
6.
In the event the appellant files and serves submissions in accordance with Order 5, the respondent be at liberty to file and serve submissions (not exceeding two pages) in reply within seven days of service of the appellant’s submissions.
7.
Subject to any written submissions to the contrary any applications for costs shall be determined in chambers without the necessity for appearance.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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