BALSAM & LACKNER (No.2) - [2021] FCCA 585

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALSAM & LACKNER (No.2)

[2021] FCCA 585

Catchwords:
FAMILY LAW – Parenting Dispute – mother seeking to relocate to Queensland – mother buying property in Queensland after unsatisfactory (to her) conclusion of bitter property proceeding – father’s opposition to relocation springing from sense of entitlement – no denying close relationship between father and son even though mother clearly primary carer – very significant risk to child’s relationship with the father if relocation permitted – not in child’s best interests to live in Queensland.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Balsam & Lackner [2020] FCCA 1115

Goode v Goode [2006] FamCA 1346

McCall & Clark [2009] FLC 405

Hepburn & Noble [2010] FamCAFC 111

Rice v Asplund (1979) FLC 90-725

Starr & Duggan [2009] FamCAFC 115

Applicant:

MS BALSAM

Respondent:

MR LACKNER

File Number:

DGC 2783 of 2019

Judgment of:

Judge Burchardt

Hearing dates:

25 & 28 February 2021

Date of Last Submission:

26 February 2021

Delivered at:

Dandenong

Delivered on:

30 March 2021

REPRESENTATION

Counsel for the Applicant:

Ms Byrnes

Solicitors for the Applicant:

Borchard And Moore

Counsel for the Respondent:

Mr Marchetti

Solicitors for the Respondent:

T J Mulvany & Co

ORDERS

The extant parenting orders made on 16 April 2020 remain in full force and effect.
The mother is to give the father one month’s notice if she seeks to relocate more than 50 kilometres from her present residence.
Otherwise all extant applications are dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Balsam & Lackner (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

DGC 2783 of 2019

MS BALSAM

Applicant

And

MR LACKNER

Respondent

REASONS FOR JUDGMENT

Introductory

By an application filed 4 November 2020 the applicant mother seeks to relocate to Queensland together with her child X born in 2011. She has bought a property up there. The respondent father opposes relocation and seeks an order (not substantially pressed so far as I can recall in submissions) that the mother not be permitted to relocate any greater distance than 50 kilometres from where she presently resides.
The mother says it is imperative for her own health and by inference the best interests of X that she be permitted to move. She will be greatly distressed if the relocation is not permitted for reasons to which I shall return. The father by way of contrast says that X’s right to a meaningful relationship with him will be significantly impacted if not destroyed if the relocation is permitted.
Although it puts the matter shortly, for the reasons that follow, and by no means without sympathy for the mother, it is clear that X’s best interests will be met by not permitting the relocation to Queensland.

The Relevant History of the Matter

This proceeding does not emerge from nowhere. As long ago as 28 August 2019 the mother filed an application seeking adjustment to property…

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 BALSAM & LACKNER (No.2)

Details

AGLC: BALSAM & LACKNER (No.2) [2021] FCCA 585
Case: [2021] FCCA 585
Decision Date: 30 March 2021

CaseChat Overview and Summary

The case of *Balsam & Lackner (No.2)* concerned a parenting dispute before Judge Burchardt. The mother sought to relocate with the child to Queensland, having purchased property there following a contentious property proceeding. The father opposed this relocation, which the court found stemmed from a sense of entitlement. Despite acknowledging the father's close relationship with the child, even though the mother was the primary carer, the court considered the significant risk to the child's relationship with the father if the relocation were permitted.

The central legal issue before the court was whether permitting the mother to relocate to Queensland with the child was in the child's best interests. This required the court to weigh the mother's desire to move against the potential negative impact on the child's relationship with the father.

Judge Burchardt reasoned that the relocation would pose a very significant risk to the child's ongoing relationship with the father. Applying the paramountcy principle in parenting matters, the court concluded that it was not in the child's best interests to live in Queensland. Consequently, the court ordered that the existing parenting orders made on 16 April 2020 would remain in full force and effect. The mother was also ordered to provide the father with one month's notice should she wish to relocate more than 50 kilometres from her current residence. All other outstanding applications were dismissed.

Orders

Orders of the court

The extant parenting orders made on 16 April 2020 remain in full force and effect.

The mother is to give the father one month’s notice if she seeks to relocate more than 50 kilometres from her present residence.

Otherwise all extant applications are dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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