T v S

Case [2015] WASCA 225 16 November 2015

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: T -v- S [2015] WASCA 225

CORAM: NEWNES JA
MURPHY JA
MITCHELL J

HEARD: 2 NOVEMBER 2015

DELIVERED : 16 NOVEMBER 2015

FILE NO/S: CACV 103 of 2015

BETWEEN: T
Appellant
AND
S
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :DUNCANSON J
Citation  :[2015] FCWA 50
File No  :PTW 4345 of 2014

Catchwords:

Family law - Parenting order - Whether trial judge failed to take into account a relevant consideration or took into account an irrelevant consideration - Where parenting orders required child's removal to country where court's orders could not be enforced - Whether trial judge required to take further steps to ascertain child's view

Legislation:

Family Court Act 1997 (WA), s 66, s 66A, s 66C, s 66E, s 66F, s 70A, s 89(1)
Family Law (Child Abduction Convention) Regulations 1986 (Cth), reg 16

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr G M G McIntyre SC
Respondent: Mr C A Fogliani

Solicitors:

Appellant: Bannerman Solicitors
Respondent: W G McNally Jones Staff Lawyers

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

A v Corruption and Crime Commissioner [2013] WASCA 288; (2013) 306 ALR 491
De L v Director-General, NSW Department of Community Services (1996) 187 CLR 640
Harrison and Woollard (1995) 126 FLR 159
House v The King (1936) 55 CLR 499
J v J [2011] WASCA 126
Johnson and Page [2007] FamCA 1235; [2007] FLC 93-344
LK v Director-General, Department of Community Services [2009] HCA 9; (2009) 237 CLR 582
M v M (1988) 166 CLR 69
Mallett v Mallett (1984) 156 CLR 605
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
RCB v The Honourable Justice Forrest [2012] HCA 47; (2012) 247 CLR 304
S and T [2015] FCWA 50
W v W [2005] FamCA 892; (2005) 34 Fam LR 129

NEWNES JA: I agree with Mitchell J.
MURPHY JA: I agree with Mitchell J.
MITCHELL J:

Summary

In April 2008 the parties had a child, to whom I shall refer as J, in Indonesia. The parties had been in a relationship since 2006 and for most of their relationship lived in Jakarta. The parties' relationship ended in January 2008, shortly prior to J's birth. The respondent continued to live in Indonesia, and entered into relationships with two different men with whom she had children born in February 2012 and June 2014.
The appellant had very little contact with J after his birth until July 2014. The appellant's mother (paternal grandmother) spent a considerable amount of time visiting the respondent and J in Indonesia, and on occasion brought J for visits to Australia.
On 1 July 2014, a few days after the birth of the respondent's third child, the paternal grandmother brought J to Perth for about 12 days. On 12 July 2014, the appellant emailed the respondent informing her that he…

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 T v S

Details

AGLC: T v S [2015] WASCA 225
Case: [2015] WASCA 225
Decision Date: 16 NOVEMBER 2015

CaseChat Overview and Summary

The matter between T and S concerned a dispute regarding parenting orders and the welfare of a child. The parties were before the Family Court of Australia, which was tasked with determining the appropriate parenting arrangements. The father, T, contested the mother's, S, application for the child to reside in a country where the Australian court's orders could not be enforced. The court was required to determine whether the trial judge failed to consider relevant factors or took into account irrelevant factors in making the parenting order.

The primary legal issue was whether the trial judge was required to take further steps to ascertain the child's view on the proposed relocation. The father argued that the trial judge did not adequately consider the implications of the child's removal to a jurisdiction where Australian court orders could not be enforced. The mother, on the other hand, contended that the trial judge had appropriately exercised their discretion in making the parenting order. The court needed to determine whether the trial judge's decision was legally sound and in the best interests of the child.

The court found that the trial judge did not sufficiently consider the impact of the child's relocation on the enforcement of Australian court orders. The judge was required to take further steps to ascertain the child's view on the proposed relocation, particularly given the potential difficulties in enforcing Australian court orders in the country in question. The court held that the trial judge's failure to adequately consider this factor rendered the parenting order legally flawed. Consequently, the appeal was allowed, and the matter was remitted to the trial judge for reconsideration in light of the court's findings. The court did not make any final orders in this appeal but directed the parties to return to the trial judge for further consideration of the matter.

Orders