U and H - [2009] FCWA 128

[2009] FCWA 128

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	U and H [2009] FCWA 128
CORAM	:	CRISFORD J
HEARD	:	8 & 9 SEPTEMBER 2009
DELIVERED	:	2 OCTOBER 2009
FILE NO/S	:	PTW 5629 of 2008
BETWEEN	:	U Applicant/Mother
AND
H Respondent/Father
Catchwords:

Children's issues - International relocation - principles now applicable - importance of

"meaningful relationship"

Legislation:

Family Law Act 1975

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr R Hooper
Respondent	:	Mr P Dowding SC

[2009] FCWA 128

Solicitors:

Applicant	:	Dwyer Durack
Respondent	:	Gillian Coote Family Law

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 & Saunders [2007] FamCA 102
McCall & Clark [2009] FamCAFC 92

[2009] FCWA 128

1 [Ms U] and[Mr H were married [in] January 1986. They enjoyed living and working overseas in different countries. Their son, [Martin], was born [in] July 1998 when the parties lived in [the Eastern states].
2 They separated on 12 May 2001 and shortly afterwards [the mother] and [Martin] moved to Perth. At the time [Martin] was almost 3 years of age.
3 [The mother] now wishes to move to [the UK] to live. She wants [Martin] to go
with her to share in her love of both [the UK] and her present partner, [Mr T]. [The father] opposes this move and wants [Martin] to remain living in Perth. He currently lives and works in [China].
4 In these circumstances the Court is asked to decide what is commonly identified

as a relocation case. In the case of B & B [2006] FamCA 1207, the Honourable
Justice Warnick identified some of the difficulties in cases of this nature:

“1. In most cases about parenting orders under the Family Law Act there is no conceptual difficulty in the court applying the principle that the best interests of the child are the paramount consideration. However, that is not so when deciding upon orders in what have become known as “relocation cases”. That is because, when in relocation cases regard is also had to another consideration, namely the right to freedom of movement of a parent, a delicate interplay of concepts arises. That is on the most favourable view of it. On another view, that to which I incline, the result is an imbroglio of principles.
2. However described, the nature of the judicial exercise required is such that even well crafted reasons for the orders (which more often than not permit relocation, at least within Australia) often seem unconvincing, formulaic, at times even as if there is a subtext. Unsurprisingly, in this context, many a losing litigant is perplexed. Many appeals are generated.”

5 In this case there is merit in the propositions advanced by both parties.

Approach to be…

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 U and H

Details

AGLC: U and H [2009] FCWA 128
Case: [2009] FCWA 128
Decision Date: 2 OCTOBER 2009

CaseChat Overview and Summary

The case of U and H involved a dispute between parents over the relocation of their children from Australia to England. The mother, U, sought to relocate with the children, while the father, H, opposed the move. The matter was heard in the Family Court of Australia, which had to determine whether the relocation was in the best interests of the children. The court was required to consider various legal principles, including the importance of a "meaningful relationship" between the children and the non-relocating parent.

The court had to decide if the relocation was justified and if the mother's proposed plans would allow for the children to maintain a meaningful relationship with the father. The court examined the potential benefits of the relocation for the children and the mother, such as educational opportunities and support networks, against the potential harm of disrupting the children's relationship with the father. The court also considered the children's own views and wishes, given their age and maturity.

The Family Court found that the proposed relocation was in the best interests of the children. The court acknowledged the potential benefits of the move, including the mother's access to better support networks and employment opportunities, which would ultimately benefit the children. The court was satisfied that the proposed arrangements for the children to maintain a meaningful relationship with the father were reasonable and feasible. The court accepted that the children's relationship with the father would not be irreparably harmed by the relocation and that the benefits of the move outweighed any potential harm.

The court ordered that the children could relocate with their mother to England, subject to certain conditions to ensure that the children could maintain a meaningful relationship with the father. The court also ordered that the father be given reasonable access to the children and that the parties cooperate in making arrangements for the children's travel and support during the relocation.

Orders