Wiley & Wiley

[2008] FamCAFC 153

FAMILY COURT OF AUSTRALIA

WILEY & WILEY [2008] FamCAFC 153

FAMILY LAW - APPEAL – CHILDREN – with whom a child lives and spends time – relocation from country New South Wales to a town near Melbourne – where the trial judge allowed the mother to take the children to a town near Melbourne to live with her – where the trial judge provided for the children to spend school holiday and some weekend time with the father in country New South Wales – whether the trial judge gave proper consideration to the effect on the children of the mother’s mental health – whether the trial judge gave proper consideration to the effect on the children of the relocation – whether the trial judge erred in the application of s 65DAA of the Family Law Act 1975 (Cth) in light of the Full Court cases of Goode & Goode and Taylor & Barker – whether there was a miscarriage of the trial judge’s discretion – no substance found in asserted errors – presumption in favour of correctness of discretionary judgments emphasised – appeal dismissed.

FAMILY LAW - APPEAL – COSTS – costs order sought by the mother if the father’s appeal unsuccessful – costs order not made.

Family Law Act 1975 (Cth), sections 60B, 60CA, 60CC, 61DA, 65DAA

A v A: Relocation Approach (2000) FLC 93-035
Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
Goode & Goode (2006) FLC 93-286
R v R (1998) FLC 92-820
Taylor v Barker (2007) FLC 93-345

APPELLANT: Mr Wiley

RESPONDENT: Ms Wiley

FILE NUMBER: CAM 1334 of 2006

APPEAL NUMBER: EA 143 of 2007

DATE DELIVERED: 22 October 2008

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Bryant CJ, Finn and Thackray JJ

HEARING DATE: 20 March 2008

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 9 November 2007

LOWER COURT MNC: [2007] FMCAfam 932

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Kearney

SOLICITOR FOR THE APPELLANT: Farrar Gesini and Dunn

COUNSEL FOR THE RESPONDENT: Ms Tonkin

SOLICITOR FOR THE RESPONDENT: Phelps Reid Lawyers

Orders

1. That the appeal be dismissed.

2. That there be no order for costs in relation to the appeal.

IT IS NOTED that publication of this judgment under the pseudonym Wiley & Wiley is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number: EA 143 of 2007
File Number: CAM 1334 of 2006

Mr Wiley

Appellant

And

Ms Wiley

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an appeal by the father against orders made by Brewster FM on 9 November 2007 whereby the two children of the father’s marriage to the mother, aged six and nine, and also a child of the mother, who had always been treated as a child of the parties’ marriage and was then aged 13, were to live with the mother and spend school holiday and some weekend time with the father.  Although not…