MONTGOMERY and MONTGOMERY - [2017] FCWA 7

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY
PERTH

CITATION: MONTGOMERY and MONTGOMERY [2017] FCWA 7

CORAM: THACKRAY CJ

HEARD: 16 & 17 FEBRUARY 2016 - BUNBURY
9 & 10 JANUARY 2017 - PERTH
13 JANUARY 2017 - ORDERS MADE

DELIVERED : 17 JANUARY 2017

PUBLISHED : 17 JANUARY 2017

FILE NO/S: PTW 1231 of 2013

BETWEEN: MS MONTGOMERY
Applicant
AND
MR MONTGOMERY
Respondent

Catchwords:

CHILDREN - Relocation - The child has lived in the [Country A] with the mother for the past six months pursuant to interim orders - The father lives in Western Australia and says he will not move to the [Country A] to be near the child - Whether the mother should be permitted to relocate with the child to the [Country A] on a final basis - The child wishes to remain in [Country A] - Weight given to the child's views - Order for the child to continue living with the mother in [Country A] - Order for the mother to have sole parental responsibility in relation to the child's health and education

Legislation:

Family Law Act 1975 (Cth), s 60CC

Category: Reportable

Representation:

Counsel:

Applicant: Mr Childs
Respondent: Self Represented Litigant

Solicitors:

Applicant: Alison McInnes Lawyer
Respondent: Self Represented Litigant

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

CDJ v VAJ (1998) 197 CLR 172
Sawant & Karanth [2014] FamCAFC 235

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

1I must determine a dispute between the mother and the father concerning living arrangements for their only child, [C], who will soon turn 12. The major issue is whether the mother should be permitted to relocate with C to reside in [Country A], where the parties lived until 2004. C had a six-month trial period in Country A last year, and has now expressed a strong desire to live there.

Background

2The mother was born in Country A in 1963, and the father was born there the following year. The mother has recently qualified as a [nurse practitioner], having previously worked in many different capacities, including as a [teacher]. The father is [an instructor], having previously worked as a [mechanic], using his [other] qualification.
3The parties married in 2001. The mother came from [Suburb D of Country A], but was living in [Suburb O of Country A] when she met the father. The father and his family come from Suburb O. The mother had moved there after she was made redundant and a relationship ended. Until then, she had spent her life in Suburb D (apart from when she was studying and working for a few years overseas).
4In 2004, the parties migrated to Australia, having greatly enjoyed their honeymoon here. They are not “city people” and decided to live in Suburb A, about 30 km from Suburb B, where they thought they might obtain work. The father obtained full-time work at [Company A] within a few weeks of…

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 MONTGOMERY and MONTGOMERY

Details

AGLC: MONTGOMERY and MONTGOMERY [2017] FCWA 7
Case: [2017] FCWA 7
Decision Date: 17 JANUARY 2017

CaseChat Overview and Summary

The parents, referred to as Montgomery and Montgomery, were engaged in a dispute concerning the relocation of their child to another country. The matter was heard in the Family Court of Australia. The mother sought permission to permanently relocate to this other country, where she had been living with the child for the last six months under interim orders. The father, residing in Western Australia, opposed the relocation and was unwilling to move to the other country to be near their child. The primary issue before the court was whether the mother should be allowed to relocate with the child to the other country on a permanent basis. Additionally, the court had to consider the child's expressed desire to remain in the other country and the appropriate weight to give to the child's views.

The court considered the implications of the child's relocation, including the disruption to the child's current living arrangements and the potential impact on the child's relationship with the father. The court also evaluated the evidence provided by the parents regarding the benefits and drawbacks of the relocation. The child's wishes were carefully weighed, and the court acknowledged the importance of considering the child's perspective, given their age and maturity. Ultimately, the court determined that it was in the best interests of the child to continue living with the mother in the other country, taking into account the child's expressed desire and the overall welfare of the child.

The court also addressed the issue of parental responsibility, deciding that the mother should have sole responsibility for the child's health and education. The court found that this arrangement would provide the child with stability and consistency, which was crucial in the context of the relocation. The final orders reflected the court's decision, granting permission for the child to remain in the other country with the mother and assigning sole responsibility for the child's health and education to the mother. The court's ruling aimed to balance the interests of both parents and the welfare of the child in the context of the relocation.

Orders