FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the Federal Magistrate allowed the mother to relocate the child’s primary place of residence – Where the father’s time with the child was limited due to the geographical distance between the parent’s homes – Where it was said the best interests of the child would be best met in the mother’s care and where the mother had support, permanent employment and where the mother was able to assist with the care of her sick mother – Where it was considered the father’s relationship with the child could be sustained.
FAMILY LAW – APPEAL – CHILDREN – Relocation – Where the appeal is from a discretionary judgment – Where it was said that the Federal Magistrate did not properly consider the child’s right to spend time with the father on a regular basis and for the parties to share in their duties and responsibilities in caring for the child – Where the father contended that the Federal Magistrate placed the best interests of the mother and the grandmother above those of the child – Where it was said that the evidence was uncertain and vague and failed to demonstrate circumstances which would warrant such a significant change in the child’s living arrangements – Where it was contended that the orders were impracticable given the geographical burden and financial implications involved in facilitating the child’s time with the father – Where it was found that the Federal Magistrate properly appreciated and considered the competing cases of the parties – Where the mother’s proposal was in the best interests of the child, primarily due to the nature of the relationship between the mother and the child, the need for the mother to have stability both financially and emotionally and for the mother to be able to care for her critically ill mother – No error established – Appeal dismissed.
FAMILY LAW – COSTS – Where the mother sought an order for costs against the father –Where the father resisted an order for costs due to his financial circumstances and the high costs associated in spending time with the child – Where the costs associated with the child moving between the parties is also borne by the mother – Where the father has been entirely unsuccessful in the appeal – Where there are circumstances that justify an order for costs against the father – Father to pay the mother’s costs of the appeal to be agreed and failing agreement to be assessed.
[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.
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AGLC
Palmer & Hammer (No.2) [2011] FamCAFC 196
Case
[2011] FamCAFC 196
Decision Date
CaseChat Overview and Summary
In the matter of Palmer & Hammer, the appellant, the father, sought to appeal the decision of the Federal Magistrate which allowed the child's primary place of residence to be relocated to the mother's care. The father argued that the decision did not adequately consider the child's right to spend regular time with him and share in the responsibilities of caring for the child. The father further contended that the Magistrate's decision placed the best interests of the mother and the grandmother above those of the child, and that the evidence was uncertain and vague, failing to demonstrate circumstances warranting such a significant change in the child's living arrangements. The father also argued that the orders were impracticable given the geographical and financial burden of facilitating his time with the child.
The court found that the Federal Magistrate properly appreciated and considered the competing cases of the parties. The court was satisfied that the mother's proposal was in the best interests of the child, primarily due to the nature of the relationship between the mother and the child, the need for the mother to have stability both financially and emotionally, and for the mother to be able to care for her critically ill mother. The court found that the father's relationship with the child could be sustained. The court found no error in the decision of the Federal Magistrate, and dismissed the appeal. Regarding the costs of the appeal, the court found that the father should pay the mother's costs as he was entirely unsuccessful in the appeal and the circumstances justified an order for costs against him.
The appeal is dismissed. The father is to pay the mother’s costs of the appeal to be agreed, and failing agreement, to be assessed.
Orders
Orders of the court
1.
The appeal is dismissed.
2.
The father pay the mother’s costs of the appeal to be agreed and failing agreement to be assessed.