PAZDAN and HARBERS - [2014] FCWA 42

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975
FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: PAZDAN and HARBERS [2014] FCWA 42

CORAM: WALTERS J

HEARD: 6, 7, 10, 11, 12, 14, 18 & 24 MARCH 2014

DELIVERED : 8 JULY 2014

FILE NO/S: PTW 2436 of 2010

BETWEEN: ELENA PAZDAN
Applicant
AND
ADAM HARBERS
Respondent
AND
ELKA PAZDAN
First Intervener
AND
MAKSYM PAZDAN
Second Intervener

Catchwords:

CHILDREN – PARENTING – RELOCATION – Where primary carer of young child is the maternal grandmother – Where grandmother is ordinarily resident in North America and wishes to return to North America with the child – Where mother and father separated in 2010 – Where mother and father have an acrimonious relationship and are involved in use of drugs – Where mother and father have been convicted of numerous offences, and each has been imprisoned – Where mother and father have involved themselves in irresponsible and antisocial activities – Where mother and father seek additional time to demonstrate that they are capable of accepting the responsibilities and duties of parenthood, and of caring for the child and providing a safe and secure environment for her – Where mother and father oppose the proposed relocation – Where the maternal grandfather, the single expert and the independent children's lawyer all support the proposed relocation as being in the child's best interests – Where it is clear that the grandmother is the only appropriate person to care for the child – Where the legitimate interests and desires of the grandmother are relevant to the child's best interests – Where the maternal grandmother has or perceives that she has very little support in Australia – Whether parents can have a meaningful relationship with the child if the relocation is to occur – Orders made permitting the proposed relocation

Legislation:

Family Court Act 1997 (WA), s 66A, s 66B, s 66(1), s 66(2), s 66(3), s 66C(2), s 66C(3), s 66C(4), s 66C(5), s 70A, s 70A(2), s 70A(4), s 70DA, s 84, s 84(3), s 89(1), s 89AD
Family Law Act 1975 (Cth), s 64B, s 60CC, , 65DAA

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Mr A McNeill
First Intervener : Ms T Farmer
Second Intervener : Self Represented Litigant
Independent Children's Lawyer : Ms H Turner

Solicitors:

Applicant:
Respondent: North Lake Legal
First Intervener : Summers Legal
Second Intervener :
Independent Children's Lawyer : Helen Turner Barrister and Solicitor

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

AMS v AIF (1999) 199 CLR 160
Champness & Hanson (2009) FamCAFC 96
Collu & Rinaldo (2010) FamCAFC 53
Cox & Pedrana (2013) FLC 93-537
Donnell & Dovey (2010) FLC 93-428
Eades & Wrensted [2014] FCWA 15
Goode & Goode (2006) FLC 93-286
Heath & Heath [2012] FamCA 844
Hungerford & Tank (2007) FamCA 637
Jets & Maker (No 2) (2011) FMCAfam 1473
M & S (2006) FamCA 1408
Mabry & Neilson [2013] FCCA 478
Marsden & Winch (No 3) (2007) FamCA 1364
Mazorski &…

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 PAZDAN and HARBERS

Details

AGLC: PAZDAN and HARBERS [2014] FCWA 42
Case: [2014] FCWA 42
Decision Date: 8 JULY 2014

CaseChat Overview and Summary

The case involved a dispute over the relocation of a young child to North America with her maternal grandmother. The parents, who had been separated since 2010 and had a history of drug use and criminal convictions, opposed the relocation. The maternal grandmother, the only expert witness, and the independent children's lawyer all supported the move as being in the child's best interests. The court had to decide whether the grandmother should be allowed to relocate with the child, despite the parents' objections.

The primary legal issue was whether the relocation would be in the best interests of the child. The court considered the child's need for a stable and supportive environment, the parents' history of drug use and criminal activity, and the grandmother's ability to provide a safe and secure home. The court also had to determine whether the parents could maintain a meaningful relationship with the child if the relocation proceeded.

The court found that the grandmother was the only appropriate person to care for the child, given the parents' history of instability and unsuitability. The court emphasised the importance of the grandmother's legitimate interests and desires in determining the child's best interests. The court also noted that the grandmother had limited support in Australia and that the child would benefit from being with her in North America. The court concluded that the relocation was in the child's best interests and ordered that it proceed.

The court made orders permitting the relocation of the child to North America with her maternal grandmother. The parents were allowed visitation rights, subject to certain conditions. The court emphasised the importance of the child maintaining a relationship with both her parents, while recognising that the grandmother was the most suitable person to care for the child at that time.

Orders