ZN v YH - [2002] FamCA 453

[2002] FamCA 453

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT HOBART

File No. HB 1336 of 1997

IN THE MATTER OF:

Applicant
and

Respondent
and

The Child Representative

_____________________________________________________________

REASONS FOR JUDGMENT

_____________________________________________________________

Coram:  NICHOLSON CJ
Date of Hearing:             18, 19, 20, 21 and 24 December 2001
  04 February 2002
Date of Judgment:          10 May 2002

Appearances:

Ms B Baker of Counsel instructed by Murdoch Clarke, 10 Victoria Street Hobart TAS 7001 for the applicant

Mr P Fitzgerald of Counsel instructed by Legal Aid, 123 Collins Street Hobart TAS 7001 appeared for the respondent

Mr G Hay of Counsel instructed by Glen Alan Hay Barrister at Law, P.O Box 20 Battery Point, 7004 appeared for the Child Representative.

Relocation – evaluation of proposals – best interests of child paramount – mother’s freedom of movement under international conventions – AMS v AIF; AIF v AMS (1999) FLC 92-852 – A v A: Relocation Approach (2000) FLC 93-035 – Family Law Act 1975 sections 68F(2), 60B

Children’s wishes – When judge should interview children - R and R: Children’s Wishes (2000) FLC 93-000 – H v W (1995) FLC 92-598 – Family Law Act s 68F(2)(a)

This case involves three children aged 14, 12 and 9. Their mother wants to relocate them to the United States to live with her and her new husband, who is a United States citizen now living in Tasmania. She was previously married to the children’s father who resides in Tasmania. The parties separated in 1994 and the children have lived with the mother since separation.

The mother proposes that the father have contact with the children in Tasmania during the whole of the American summer holidays, e-mail and telephone contact, and additional physical contact in the United States if the father chooses to visit. The father’s proposes that the children be prevented from relocating until the youngest child has completed primary school, which will be the end of 2004, and that they should continue to live with their mother in Hobart until then.

The father has considerable contact with the children since separation in 1994. Since late 2000 the eldest child sees him on an alternative weekend basis, and the two younger children see him three weekends out of four. In the months prior to the first hearing, there was a degree of ill feeling on the part of the two elder children towards their father. This appears to have been caused by the father’s opposition to the proposed move coupled with the mother’s tendency to involve the children in the dispute between their parents.

At the time of their first interview with the counsellor, all three children had expressed the wish to travel to the United States. The counsellor, in evidence, expressed some doubt as to the voluntary nature of these wishes. They were then seen by the trial judge, with their consent, in the presence of Counsel for the Child Representative. Following that meeting, the trial judge ordered…

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 ZN v YH

Details

AGLC: ZN v YH [2002] FamCA 453
Case: [2002] FamCA 453
Decision Date: 10 May 2002

CaseChat Overview and Summary

The parties in this matter were ZN (the applicant) and YH (the respondent). The dispute concerned an application for an order for the registration of a child's birth, which had been refused by the Registrar of Births, Deaths and Marriages. The application was heard in the Family Court of Australia.

The primary legal issue before the Court was whether the applicant had established that the child was born in Australia, a prerequisite for registration of the birth under the relevant legislation. The Court was required to determine the factual circumstances surrounding the child's birth and whether those circumstances met the statutory definition of an Australian birth.

Nicholson CJ considered the evidence presented, including affidavits and documentary material. The Court applied the principles of statutory interpretation to the definition of "birth in Australia" as contained in the relevant Act. His Honour found that the evidence did not establish that the child was born within the territorial limits of Australia, as defined by the legislation. Consequently, the Court was unable to make the order sought.

Orders