Molloy & Reid

Case [2018] FamCAFC 89

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

In the matter of Molloy & Reid, the court was presented with a dispute concerning the relocation of children from Queensland to New Zealand. The father opposed the proposed relocation, and the mother sought permission to move with the children. The case was heard in the Family Court of Australia, with an appeal subsequently filed by the mother, the primary caregiver, and a cross-appeal by the father regarding a notation to an order.

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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