Jackey and Lyone (No. 2) - [2008] FamCA 1052

FAMILY COURT OF AUSTRALIA

JACKEY & LYONE (NO. 2)

[2008] FamCA 1052

FAMILY LAW – CHILDREN —RELOCATION – Relocate residence of child—Mother in Switzerland or Father in Australia—Bale v Jenkins (2007) FamCA 809—Best interests under section 60CC—Primary attachment to Father—Proposed order that child live with Father—Further submissions required

APPLICANT:

Mr Jackey

RESPONDENT:

Ms Lyone

FILE NUMBER:

BRC

4670

2007

DATE DELIVERED:

4 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Barry J

HEARING DATE:

4 - 6 August 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Waterman

SOLICITORS FOR THE APPLICANT:

Neumann & Turnour Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lynch

SOLICITORS FOR THE RESPONDENT:

Noosa Family Law

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Kirkman-Scroope

SOLICITORS FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Family Law Solutions

Orders

No orders to issue at this point in time. Further submissions to be made.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC4670 of 2007

MR JACKEY

Applicant

And

MS LYONE

Respondent

REASONS FOR JUDGMENT

The parties’ child is five years old. His mother, Ms Lyone (“the mother”) wants him to live with her in Switzerland. His father, Mr Jackey (“the father”) wants him to remain with him in South East Queensland.
The issue I have to decide is whether the child is to live in Switzerland or Australia.

BACKGROUND HISTORY

Father

The Applicant Father is forty-one years of age. He was born in the United Kingdom. He came to Australia with his parents when he was three months old. I note the child came to Australia with his parents when he was about five months old.
In early 1994 the father commenced work in IT in Switzerland. He has dual British and Australian citizenship. In a family report prepared by Ms M dated 25 March 2008 (paragraph 25) whilst interviewing the Applicant Father she recorded the following:
“25.[The father] asserts that he cannot return to live in Switzerland and gain a work permit unless the company he works for is able to prove that a Swiss national could not do his job. He doubts that this is something that his company could prove. [The father] further asserts that he does not wish to live in Switzerland as his home and his family are in Australia.”
In the same report in paragraph 33 Ms M records:
“33.[The mother] is of the view that there is no reason why, if [the father] wanted to experience an ongoing relationship with [the child] that he could not live and work in Switzerland as “every European passport holder can live and work in Switzerland”.”
I accept that the Applicant is the holder of a United Kingdom passport. I am inclined to the view that he would not have any difficulty working in Switzerland if he elected to do so. Annexure S19 to the Mother’s trial affidavit appears…

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 Jackey and Lyone (No. 2)

Details

AGLC: Jackey and Lyone (No. 2) [2008] FamCA 1052
Case: [2008] FamCA 1052
Decision Date: 4 December 2008

CaseChat Overview and Summary

In *Jackey and Lyone (No. 2)*, Barry J considered a dispute between the parties concerning [briefly describe the nature of the dispute, e.g., property settlement, family law matters, contractual disagreement]. The proceedings were before the [name of the court, e.g., Federal Circuit Court of Australia, Supreme Court of New South Wales].

The central legal issues before the court involved [state the primary legal questions the court had to decide, e.g., the proper characterisation of certain assets, the application of specific legislative provisions, the interpretation of contractual clauses]. The court was required to determine [elaborate on the specific legal questions, e.g., whether certain funds constituted financial resources, the extent of a party's obligations under a deed, the appropriate valuation methodology for a business].

Barry J's reasoning focused on [explain the court's approach and the legal principles applied, e.g., the interpretation of the Family Law Act 1975, established principles of contract law, relevant case law concerning property division]. The court analysed [describe the evidence or arguments considered by the court, e.g., the financial circumstances of the parties, the terms of the agreement, expert evidence presented]. The application of these principles led the court to [briefly indicate the court's preliminary findings or direction].

No final orders were made at this stage, with the court directing that further submissions were to be made by the parties.

Orders

Orders of the court

No orders to issue at this point in time. Further submissions to be made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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