FAMILY LAW – APPEAL – RELOCATION – Appeal from orders requiring the mother to relocate to a location within 20 kilometres of the children’s school – Whether the primary judge erred at law – Whether the primary judge failed to consider the advantages and disadvantages of the parties’ proposals – Challenges to weight given to mother’s right to freedom of movement – Children’s views – Adequacy of reasons – No error established – Appeal dismissed.
Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 114(3)
[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
Wagstaff & Wagstaff [2022] FedCFamC1A 119
Case
[2022] FedCFamC1A 119
Decision Date
CaseChat Overview and Summary
The Federal Circuit and Family Court of Australia, Appellate Division, dealt with an appeal brought by Ms. Wagstaff against orders made in family law proceedings concerning the relocation of her children. The primary judge had ruled that Ms. Wagstaff must reside within 20 kilometres of the children's school, a decision she challenged on several grounds. Among her arguments, Ms. Wagstaff claimed that the primary judge had erred in law by not adequately considering her right to freedom of movement, had failed to weigh the advantages and disadvantages of the parties' proposals, and had not sufficiently considered the children's views.
The appellate judges examined Ms. Wagstaff's arguments, assessing whether the primary judge had erred in law or failed to adequately consider the relevant factors. They found that the primary judge had clearly articulated the reasoning behind the relocation orders, taking into account the children's best interests, Ms. Wagstaff's right to freedom of movement, and the father's position. The judges also held that the primary judge had given appropriate weight to the children's views, which were expressed through their independent children's lawyer. The reasons provided by the primary judge were deemed adequate, and no error in law was identified in the decision-making process.
Having considered all grounds of appeal, the appellate judges concluded that none of the arguments presented by Ms. Wagstaff had merit. Consequently, the appeal was dismissed, and no costs were awarded to the respondent as he was unrepresented during the appeal. The decision affirms the orders made by the primary judge, requiring Ms. Wagstaff to reside within 20 kilometres of the children's school.
Orders
Orders of the court
NAA 4 of 2022
MLC 8730 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MS WAGSTAFF
Appellant
AND:
MR WAGSTAFF
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE, WILSON & JARETT JJ
DATE OF ORDER:
2 AUGUST 2022
THE COURT ORDERS THAT:
1. The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
In this case I am of the view that the primary judge exposed the path of reasoning that led to the orders made. I do not accept that any error was thereby made. This ground failed. It must be dismissed. CONCLUSION All grounds of appeal have failed. I would dismiss the appeal. COSTS The respondent was not represented and so he did not incur costs on the appeal.