Y and M - [2007] FCWA 89

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	Y and M [2007] FCWA 89
CORAM:	PENNY J
HEARD:	4 JULY 2007
DELIVERED:	18 JULY 2007
FILE NO/S:	PT 941 of 2005

BETWEEN: Y

Appellant/Father
AND
M
Respondent/Mother
(Page 2)

Catchwords:

Father's appeal against order to allow mother to remove child from Western

Australia for a trip [overseas] - appeal dismissed

Legislation:

Family Law Act 1975
Jurisdiction of Courts (Family Law) Act 2006 - s 27(2)

Category: Not Reportable

Representation:

Counsel:

Appellant:	Ms D Dimond
Respondent:	Ms S Strapps

Solicitors:

Appellant:	Dimond Family Lawyers
Respondent:	Women's Law Centre

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

Good and Good (1982) FLC 91-249
Kuebler and Kuebler (1978) FLC 90-434
Line and Line (1997) FLC 92-729
V and V (2004) FLC 93-201
(Page 3)

1 The application before the Court is the father’s appeal filed on 12 June 2007 from the orders made by Magistrate Moroni permitting the mother to remove the parties’ child from Western Australia for a 12 week trip [overseas].

Background

2 Both parties were born [overseas]. The father is 45 years of age and the mother is 37 years of age. The parties met [overseas] and were married in [the capital city] in June 2003. Shortly after their marriage the parties moved to Australia. Approximately one month later, the parties’ only child, [M], was born in March 2004.
3 The parties separated in September 2004 and since separation the relationship between them has been poor. Certain allegations have been made by the parties during these proceedings, however; they are not necessarily relevant for this particular interim application.
4 The father initiated proceedings in the Court in February 2005, seeking parenting orders in relation to [M]. Although those proceedings are still on foot, little has occurred in the way of their finalisation.
5 The parties agreed to interim orders on 20 April 2005 that [M] would reside with the mother and she would be responsible for her day-to-day care, welfare and development. The father was to have supervised contact with [M] on four occasions of 2 hours duration prior to 2 May 2005 and thereafter for periods of 2 hours on providing the mother’s solicitors at least 7 days’ notice. The orders also required [M]’s passport to be delivered up and held by the Court, and an injunction was granted restraining each party from removing [M] from Western Australia.
6 Since the orders were made the father has relocated to [the Eastern states] and continues to reside there. According to the mother, the father has not had a great deal of contact with [M]. She says that he has only seen [M] on three occasions in the last six months, being 2 December 2006, 28 April 2006 and 29 April 2006. There has been no contact by telephone or letters between the father and [M].

(Page 4)
7	The mother filed an application for temporary orders on 21 May 2007 to suspend for a 12 week period…

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 Y and M

Details

AGLC: Y and M [2007] FCWA 89
Case: [2007] FCWA 89
Decision Date: 18 JULY 2007

CaseChat Overview and Summary

Y, the father, appealed against a decision made by the Family Court of Australia that allowed M, the mother, to remove their child from Western Australia for an overseas trip. The appeal was heard by the Full Court of the Federal Court of Australia. The primary issue before the court was whether the Family Court had correctly exercised its discretion under section 60CC of the Family Law Act 1975 (Cth) in permitting the child's removal. The court considered the relevant factors as outlined in the legislation, including the child's best interests and the potential impact of the trip on the child's relationship with both parents.

The Full Court of the Federal Court reviewed the evidence presented to the Family Court and the arguments made by both parties. The court emphasised the importance of the primary judge's assessment of the child's best interests and the weight given to the child's relationship with the mother. The court found that the Family Court had adequately considered the relevant factors and exercised its discretion in a manner consistent with the legislative framework. The Full Court also noted that the father had not demonstrated that the primary judge's decision was clearly wrong or that there was an error of law.

In dismissing the father's appeal, the Full Court of the Federal Court upheld the original decision of the Family Court. The court's reasoning focused on the importance of respecting the primary judge's assessment of the child's best interests and the weight given to the child's relationship with the mother. The court concluded that the Family Court had exercised its discretion correctly and that there was no basis for the father's appeal to succeed. As a result, the order allowing the child to travel overseas with the mother remains in place.

Orders