MONTGOMERY and MONTGOMERY

[2017] FCWA 5

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

PERTH

CITATION: MONTGOMERY and MONTGOMERY [2017] FCWA 5

CORAM: THACKRAY CJ

HEARD: 16 & 17 FEBRUARY 2016 - BUNBURY,

9 & 10 JANUARY 2017 - PERTH

DELIVERED : 13 JANUARY 2017

FILE NO/S: PTW 1231 of 2013

BETWEEN: MS MONTGOMERY

Applicant

AND

MR MONTGOMERY
Respondent

Catchwords:

CHILDREN - Relocation - Order for the child to continue living with the mother in [Country A] - Further reasons to follow

Legislation:

Family Law Act 1975 (Cth)

Category: Not 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):

Nil

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

1I am required to determine a dispute between the mother and the father concerning the living arrangements for their only child, [C], who was born [in] 2005. 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 commenced secondary school there.

2The trial commenced in Bunbury in February 2016 but was adjourned, part heard, on the basis that it was to be relisted in January 2017 after the six-month trial period. The trial resumed on 10 January 2017 and concluded on 11 January 2017, when I reserved my decision. I informed the parties that I hoped to deliver judgment this week, given the importance of C knowing whether he is to return to school in Country A or whether he will be starting high school in [Suburb A] in a few weeks’ time.

3Regrettably, my reasons for decision are not yet in a form suitable for publication, but I do not wish to delay the resolution of the matter any longer in view of the fact that I have determined that it is in C’s best interests to return to Country A where he should have recommenced school more than a week ago.

4My reasons for concluding that it is in C’s best interests to relocate to Country A will hopefully be published next week. In summary, however, my decision gives effect to C’s strongly expressed wishes, which are consistent with my own view as to what outcome is likely to be best for him. Although the father has indicated that he will not return to his home country to live near C, in my more lengthy reasons, I will explain why I consider that this is most unfortunate, as it would be ideal for C if his father were to be living close enough to him to ensure that he remains actively involved in the boy’s life.

Orders

1.Subject to Order 2, [MS MONTGOMERY], (“the mother”) and [MR MONTGOMERY] (“the father”) have equal shared parental responsibility for [C], born [in] 2005 (“[C]”).

2.The mother have sole parental responsibility for [C’s] health and education provided that, where practicable, the mother shall consult with the father in relation to such matters prior to making any decision concerning [C].

3.[C] live with the mother, and the mother have leave to relocate with [C] to the [Country A], provided that the mother shall not remove [C] from Australia prior to 5.00 pm on 18 January 2017.

4.During each long [Country A] summer school vacation, [C] shall spend time with the father for six weeks (or such lesser time as the father may determine), such time to be exercised in such place as the father shall determine.

5.If the father elects to spend time pursuant to Order 4 in Western Australia, the mother shall meet the costs of [C] travelling economy class from [Country A] to Perth (and in 2017 shall meet her own costs of accompanying [C]).

6.In the event that the father is visiting [Country A], he shall spend liberal time with [C] as agreed between the father and the mother, subject to the father giving reasonable notice of his intention to visit. (The Court notes the mother’s intention to facilitate [C] spending some time during holidays with the father’s family in [Suburb O].)

7.The father be at liberty to communicate with [C] by Skype or other electronic means not less than twice each week (the length of such communication to be subject to [C’s] wishes), and the mother shall facilitate such communication.

8.When [C] is spending time with the father, the mother be at liberty to communicate with [C] by Skype or other electronic means not less than twice each week (the length of such communication to be subject to [C’s] wishes), and the father shall facilitate such communication.

9.The mother and father shall each keep the other promptly informed as to any emergency, illness or serious medical condition in relation to [C].

10.The mother and father shall be at liberty to obtain copies of [C’s] school and healthcare records, and to discuss [C’s] education and health with his medical practitioners, therapists and teachers, and each parent shall sign any necessary authority to ensure information concerning [C’s] education and health may be fully disclosed and discussed with both parents.

11.The mother and father shall keep each other advised at all times of their current address, telephone numbers and email addresses, and if practicable, give at least seven days’ notice of their intention to change those details.

12.The mother and father shall each ensure that [C] continues to consult with [Mrs A] for a period of six months, at such frequency as [Mrs A] shall determine, with the costs to be met equally by the mother and the father.

13.Subject to any agreement to the contrary between the mother and the father, the father shall spend time with [C] up until 24 hours’ prior to mother’s proposed departure to [Country A] pursuant to Order 3.

13.There be liberty to apply on short notice in relation to the implementation of these orders.

14.The proceedings otherwise be dismissed.

I certify that the preceding [4] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate
13 January 2017