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PARISH & ALGERS

Case [2021] FamCA 291 13 May 2021

Family Law

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FAMILY COURT OF AUSTRALIA

PARISH & ALGERS

[2021] FamCA 291

FAMILY LAW – CHILDREN – RELOCATION – child not wanting to relocate – child 11 years old – relocation order refused.

Evidence Act 1995 (Cth), s 128
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 64A, 65DAA

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
Amador v Amador (2009) 43 Fam LR 268

AMS v AIF (1999) 199 CLR 160

Asher v Wilkinson (2020) 61 Fam LR 523
B & B (1997) 21 Fam LR 676
Babcock & Waddell [2019] FamCAFC 129
Beazley & Andreopolis [2009] FamCA 567
Blanding v Blanding (2016) 55 Fam LR 218
Carr v Western Australia (2007) 232 CLR 138
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Director of Public Prosecutions for Victoria v Le (2007) 232 CLR 562
Galea v Galea (1990) 19 NSWLR 263
Honeysett v The Queen (2014) 253 CLR 122

Jones v Dunkel (1959) 101 CLR 298

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
KMB & PRL [2005] FamCA 1202
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
M v M (1988) 166 CLR 69
M v S (2006) 37 Fam LR 32
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR
Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322
Mitty & Mitty [2010] FamCA 718
Morgan v Miles (2007) 38 Fam LR 275
MRR v GR (2010) 240 CLR 461
Naczek v Dowler (No 4) [2008] FamCA 653
Northern Territory v Collins (2008) 235 CLR 619
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Berchet [1794] ER 1806
Re TC & JC (Children Relocation) [2013] EWHC 292
Richter & Richter [2019] FamCA 507
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72
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Spurling & Spurling (No 2) [2018] FamCA 1130
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Stone & Clifford [2016] FCCA 2045
Taylor v Barker (2007) 37 Fam LR 461
Taylor v Public Service Board (NSW) (1976) 137 CLR 208
The Commonwealth v Baume (1905) 2 CLR 405
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Wilkins & Coates [2018] FamCA 1098
Yanner v Eaton (1999) 201 CLR 351
Yarmirr v Northern Territory (2001) 208 CLR 1

Sir Thomas Bingham, The Judge as Juror: the Judicial Determination of Factual Issues (1985) 38(1) Current Legal Problems 1
Sir Richard Eggleston, Evidence, Proof and Probability (Weidenfeld and Nicolson, 2^nd edition, 1983)

APPLICANT:

Ms Parish

RESPONDENT:

Mr Algers

FILE NUMBER:

HBC

797

2020

DATE DELIVERED:

13 May 2021

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Hobart

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.

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Details

AGLC: PARISH & ALGERS [2021] FamCA 291
Case: [2021] FamCA 291
Decision Date

CaseChat Overview and Summary

This case, *Parish & Algers* [2021] FamCA 291, concerned an application made to the Family Court of Australia by a mother seeking orders for the relocation of her child, X, to Queensland. The father opposed the relocation. The child, X, was 11 years old at the time of the proceedings.

The primary legal issue before the Court was whether to grant the relocation order sought by the mother, considering the paramountcy of the child's best interests as mandated by the *Family Law Act 1975* (Cth). This involved assessing various factors, including the child's expressed wishes, the practicalities of the proposed move, and the impact on the child's relationship with both parents.

In its reasoning, the Court gave significant weight to the expressed wishes of the 11-year-old child, who indicated a strong desire not to relocate. The Court considered that the child's views were well-reasoned and reflected a genuine preference to remain in her current environment, close to her father and established social connections. The Court found that the potential disruption and emotional impact on the child of forcing a relocation against her wishes outweighed the benefits proposed by the mother. The Court applied the principles outlined in sections 60B, 60CA, and 60CC of the *Family Law Act 1975* (Cth), emphasising the importance of the child's right to have their views considered and given due weight according to their age and maturity.

Ultimately, the Court refused to make the relocation order sought by the mother. The existing arrangements for X to spend time with both parents were to continue.

Orders