Bircher & Bircher (No 2) - [2019] FamCA 991

FAMILY COURT OF AUSTRALIA

BIRCHER & BIRCHER (NO. 2)

[2019] FamCA 991

FAMILY LAW – JUDGMENTS – Stay – Where a final parenting order was made and judgment delivered following a defended hearing – Where the mother has filed a Notice of Appeal in relation to the final order and seeks a stay of the order pending the outcome of the appeal – Where the stay is opposed by the father and the independent children’s lawyer – Where the order has been put in operation – Where the mother did not establish a proper basis for a stay – Where the application is dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson & Senior (Stay Appeal) (2013) FLC 93-556
Bele & Vaughan [2011] FamCA 724
Clemett & Clemett (1981) FLC 91-013
Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322
Virgtel Ltd & Anor v Zabusky & Ors (No 2) [2009] QCA 349

APPLICANT:

Ms Bircher

RESPONDENT:

Mr Bircher

INDEPENDENT CHILDREN’S LAWYER:

Ms Singh-Pillay

FILE NUMBER:

BRC

1459

2011

DATE DELIVERED:

13 December 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

13 December 2019

REPRESENTATION

FOR THE APPLICANT:

Self-represented

FOR THE RESPONDENT:

Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Cornerstone Law Offices

Order

The Application in a Case filed by the applicant mother on 28 November 2019 seeking a stay of the Order dated 27 November 2019 pending appeal be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bircher & Bircher has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1459 of 2011

Ms Bircher

Applicant

And

Mr Bircher

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 27 November 2019, I made a parenting order in relation to the three children of Ms Bircher and Mr Bircher. The changes made to the parenting arrangements that existed prior to that order include that the children will live in a week-about arrangement rather than nine days with the mother and five days with the father in each fortnight and the father will have sole parental responsibility for all health issues relating to the children rather than a continuation of equal shared parental responsibility.
On 4 December 2019, the mother filed a Notice of Appeal in relation to the order (save for the provision that she have sole parental responsibility for choosing the high school for the two children).…

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 Bircher & Bircher (No 2)

Details

AGLC: Bircher & Bircher (No 2) [2019] FamCA 991
Case: [2019] FamCA 991
Decision Date: 13 December 2019

CaseChat Overview and Summary

In *Bircher & Bircher (No 2)*, the Supreme Court of Queensland was asked to determine whether a party to a family law property settlement was entitled to an order for the sale of a property held by the other party. The dispute arose in the context of ongoing proceedings concerning the division of matrimonial assets.

The central legal issue before the Court was whether it possessed the power to order the sale of a property that was not jointly owned by the parties, but rather solely owned by one of them. This required an examination of the Court's jurisdiction and the scope of its powers under the relevant family law legislation to make orders concerning property.

Carew J considered the provisions of the *Family Law Act 1975* (Cth), particularly those relating to the division of property. His Honour determined that the Court's power to make orders with respect to property extended to ordering the sale of property owned by one party, even if that property was not jointly held. The Court's overarching duty is to achieve a just and equitable division of the parties' financial resources, and this may necessitate the sale of an asset to facilitate such a division. The Court found that it had the power to order the sale of the property in question.

Orders