Brickley and Lidcombe - [2012] FMCAfam 301

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRICKLEY & LIDCOMBE

[2012] FMCAfam 301

FAMILY LAW – Relocation dispute – mother primary carer and attachment for child – mother’s partner relocating to Perth – child having good and important relationship with father and father’s family – Independent Children’s Lawyer and family report writer opposing relocation – consideration of effect on mother and child if relocation not permitted.

Family Law Act 1975, s.60CC

Vigano & Latimer [2010] FMCAfam 660
Goode v Goode [2006] FamCA 1346

Applicant:

MR BRICKLEY

Respondent:

MS LIDCOMBE

File Number:

CSC 473 of 2008

Judgment of:

Burchardt FM

Hearing dates:

27, 28 & 29 February 2012

Date of Last Submission:

29 February 2012

Delivered at:

Melbourne

Delivered on:

19 April 2012

REPRESENTATION

Counsel for the Applicant:

Ms E. Swart

Solicitors for the Applicant:

Lampe Family Lawyers

The Respondent:

In person

Counsel for the Independent Children’s Lawyer:

Ms M. Agresta

Solicitors for the Independent Children’s Lawyer:

Victoria Legal Aid

FINAL ORDERS MADE ON 4 MAY 2012

There be final orders made in terms of the Minutes attached hereto marked Exhibit “A”.
The father is not to disclose the residential address of the mother to any person other than Ms Leigh.
Ms Leigh is not to disclose the residential address of the mother to any other person.
The mother is to give not less than two (2) months notice to the father in the event that she wishes to relocate from Perth.
The mother is to inform the father as soon as practicable of any change in the child’s school.
The Independent Children’s Lawyer be discharged.

AND THE COURT NOTES THAT:

Pursuant to section 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

EXHIBIT “A”

IT IS ORDERED THAT:

The mother be permitted to relocate to Perth.
Until the mother relocates the Orders made on 26 September 2011 and 18 November 2011 remain in full force and effect.
The mother and father have equal shared parental responsibility for the child of the marriage namely [X] born [in] 2005 (“[X]”).
The child [X] live with the mother.
The child [X] spend time and communicate with the father as follows:
(a)For a period of 11 nights and each of the Western Australia Easter and September school holidays at times to be agreed and in default of agreement the first half to commence on the first Saturday of the school holidays and to conclude on the second Wednesday of the school holidays;
(b)For one half of the mid year school holidays and in default of agreement to commence on the first Saturday and to conclude on the second Sunday;
(c)For one half of the summer school holidays being the second half in 2012/2013 and each alternate year thereafter and the first half in 2013/2014 (including the whole of Christmas Day)…

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 Brickley and Lidcombe

Details

AGLC: Brickley and Lidcombe [2012] FMCAfam 301
Case: [2012] FMCAfam 301
Decision Date: 19 April 2012

CaseChat Overview and Summary

In the Family Court of Australia, the case of Brickley and Lidcombe involved a dispute between the father and the mother of a child regarding parenting arrangements and contact. The father sought a variation of the existing orders to increase his contact time with the child and sought a relocation of the child to his home in Melbourne. The mother opposed these applications.

The court had to decide whether the father's applications should be granted, particularly whether there was a significant benefit to the child to justify a change in the existing arrangements. The court considered the welfare and best interests of the child as the paramount consideration, evaluating the evidence and submissions from both parties. The court also needed to determine the appropriate measures to ensure effective communication and cooperation between the parents in relation to the child's schooling and relocation.

The court found that while the father's applications had merit, the existing arrangements were in the best interests of the child. The court emphasised the importance of stability and continuity for the child, given her young age and the recent changes in her living arrangements. The court made specific orders to facilitate communication and cooperation between the parents, including restrictions on the disclosure of residential addresses and requirements for notice of relocation and changes in schooling. The Independent Children's Lawyer was discharged as the matter had been resolved to the satisfaction of the court.

Orders

Orders of the court

FINAL ORDERS MADE ON 4 MAY 2012

1. There be final orders made in terms of the Minutes attached hereto marked Exhibit “A”.

2. The father is not to disclose the residential address of the mother to any person other than Ms Leigh.

3. Ms Leigh is not to disclose the residential address of the mother to any other person.

4. The mother is to give not less than two (2) months notice to the father in the event that she wishes to relocate from Perth.

5. The mother is to inform the father as soon as practicable of any change in the child’s school.

6. The Independent Children’s Lawyer be discharged.

AND THE COURT NOTES THAT:

7. Pursuant to section 65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

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

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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