P and C - [2007] FCWA 119

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	P and C [2007] FCWA 119
CORAM:	CRISFORD J
HEARD:	3-6 SEPTEMBER 2007
DELIVERED:	16 OCTOBER 2007
FILE NO/S:	PT 205 of 2007
BETWEEN:	P

Applicant/Father
AND
C
Respondent /Mother
(Page 2)

Catchwords:

Children's issues - interstate relocation - applicable principles

Legislation:

Family Law Act 1975, s 66A, s 60B, s 66, s 66C, s 68F, s 89AA

Category: Not Reportable

Representation:

Counsel:

Applicant:	Ms S Moncrieff
Respondent:	Mr R Bannerman

Solicitors:

Applicant:	Paterson & Dowding
Respondent:	Bannerman Solicitors

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

A v A Relocation Approach (2000) FLC 93-035
AMS v AIF; AIF v AMS (1999) FLC 92-852
B & B [2006] FamCA 1207
B and B Family Law Reform Act 1995 (1997) FLC 92-755
Godfrey and Saunders [2007] FamCA 102
(Page 3)

1 From the beginning of their relationship, [Mr P] and [Ms C] have been very mobile. They are now unable to decide where their children, [G] aged 6½ and [T] aged 5 should live. [Mr P] wants them to live with him in [the North-west] and [Ms C] wants them to live with her in [[another state].
2 The parties lived in the [the North of W.A.] from 2001, some six months after [G]’s birth, until November 2005.
3 They then spent a year in [another state] before returning to [the North-west] in late 2006. By mid January 2007 they had separated. Then, without notice to [Mr P], [Ms C] removed the children to [another state] where they have lived since.

Applicable law

4 In A v A: Relocation Approach (2000) FLC 93-035, the Full Court of the Family Court undertook an analysis of the considerations that might properly effect the outcome of a case where relocation is proposed. Guidelines for decision making were set down. The Court followed binding principles of law that were established by a majority of the High Court in AMS v AIF; AIF v AMS (1999) FLC 92-852:

“• In determining a parenting case that involves a proposal to relocate the residence of a child, the welfare or best interests of the child as the case may be under the relevant legislation, remains the paramount consideration but it is not the sole consideration.
• In determining a parenting case that involves a proposal to relocate the residence of a child, a court cannot require the applicant for the child’s relocation to demonstrate “compelling reasons” for the relocation of a child’s residence “contrary to the proposition that the welfare of the child would be better promoted by” maintenance of the existing circumstances: (per Gleeson CJ, McHugh and Gunmow JJ at paragraph 47; Gaudron J at paragraph 92; Kirby J at paragraph 195; Hayne J at paragraph 209).”

5 The Full Court went on to outline matters to be taken into
account:

(Page 4)

•	The Court must identify and evaluate the competing proposals advanced by each party.

• The Court is not to dissect the case…

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 P and C

Details

AGLC: P and C [2007] FCWA 119
Case: [2007] FCWA 119
Decision Date: 16 OCTOBER 2007

CaseChat Overview and Summary

The case involved P and C, parents of two children, who were engaged in a legal dispute over the relocation of their children to a different state within Australia. The matter was heard by the Family Court. The primary issue before the court was whether the relocation of the children was in their best interests and if it complied with the applicable legal principles.

The legal issues the court was required to decide included whether the proposed relocation was motivated by a genuine intention to serve the children's best interests or if it was primarily driven by the parents' personal circumstances. The court also needed to assess the potential impact of the relocation on the children's welfare, including their emotional, educational, and social well-being. Furthermore, the court had to consider the extent of the children's connection to the current state and the implications of uprooting them from their existing environment.

The court determined that the relocation was not in the children's best interests, as the proposed move was primarily driven by the mother's desire to distance herself from the father and the children's current community. The court found that the mother's decision was influenced by her personal circumstances rather than a genuine concern for the children's welfare. The court emphasised the importance of maintaining stability and continuity in the children's lives, and the potential harm that could result from disrupting their established relationships and routines. Consequently, the court denied the application for relocation, ruling that it would be detrimental to the children's overall well-being.

Orders