Lemberg and Lemberg - [2009] FMCAfam 174

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEMBERG & LEMBERG

[2009] FMCAfam 174

FAMILY LAW – Parenting orders – where mother wishes to relocate from Tasmania to Western Australia.

Family Law Act 1975, ss.60CC(3), 60CC(2), 60CC, 65DAA(2), 65DAA(1), 61DA, 60CA

Taylor & Baker [2007] FAMCA 1246
Bolitho & Cohen (2005) FLC 93-224
Claringbold & James [2007] FAMCA 1032
D & T [2007] FAMCA 1383
Garvey & Eccles [2008] FMCAfam 1218
P & P [2006] FMCAfam 518
A & A: Relocation Approach [2000] FAMCA 751
U & U (2002) 211 CLR 238

Applicant:

MR LEMBERG

Respondent:

MS LEMBERG

File Number:

HBC 312 of 2008

Judgment of:

Baker FM

Hearing dates:

11, 12 & 13 February, 4 March 2009

Date of Last Submission:

4 March 2009

Delivered at:

Hobart

Delivered on:

6 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Smith

Solicitors for the Applicant:

PWB Lawyers

Counsel for the Respondent:

Mr Dixon SC

Solicitors for the Respondent:

Wallace Wilkinson & Webster

ORDERS

All prior parenting orders are discharged.
That the parents are to have equal shared parental responsibility for the child [X] born in 2007 (“the child”).
The child is to live with the mother.
The mother be permitted to relocate with the child to Perth, Western Australia.
The child is to spend time with the father in Western Australia as follows:
(a)For seven consecutive days per month from 8.00am until 5.00pm for nine months of each calendar year.
(b)In 2009 on Christmas Day from 12.00noon until 6.00pm Christmas Day;
(c)In 2011 from 3.00pm on Christmas Day until 6.00pm Boxing Day and in each alternate year thereafter;
(d)For a minimum of four hours on the child’s birthday and on Father’s Day if those special days should coincide with the child living with the mother;
(e)After the expiration of 12 months the time in order 5(a) shall include overnight time and during that period the mother shall be entitled to see the child for at least two hours every second day or at other times to be agreed between the parties;
(f)Such further time as agreed.
That the child spend time with the father in Tasmania as follows:
(a)For seven consecutive days per month from 8.00am until 5.00pm to be taken in no more than three separate months of each calendar year and not in the same months as order 5 (a) above;
(b)Commencing in 2010 from 6.00pm on Christmas Eve until 3.00pm on Christmas Day and in each alternate year thereafter in Tasmania.
(c)Such further time as agreed.
In 2009 for the time referred to in order 5(a), the father spend time with the child in Western Australia in April, May, July, August, September, November, December 2009.
In 2009 for the time referred to in order 6(a), the father spend time with the child in Tasmania in June and October 2009.
That in the event that the father travels to Perth the mother shall facilitate the father spending further time with [X].
From 2010 until the child attends full time school:
(a)the…

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 Lemberg and Lemberg

Details

AGLC: Lemberg and Lemberg [2009] FMCAfam 174
Case: [2009] FMCAfam 174
Decision Date: 6 March 2009

CaseChat Overview and Summary

The case of Lemberg and Lemberg involved a dispute between the parents of a child born in 2007. The matter was heard in the Family Court of Australia, where the primary concern was the determination of parenting arrangements for the child, [X]. The parents sought to resolve their differences through the court, aiming to reach an agreement that would be in the best interests of their child.

The court was tasked with deciding several legal issues, including the allocation of parental responsibility, the primary residence of the child, and the specific details of the parenting time schedule. It was essential to consider the welfare and best interests of the child in light of the parents' wishes and the potential impact of relocation. The court had to balance the need for stability and continuity in the child's life with the desire to maintain meaningful relationships with both parents.

In reaching its decision, the court considered the evidence and submissions from both parties, including expert opinions and the child's own views, where appropriate. The court determined that the child would live primarily with the mother but would spend significant time with the father under a detailed and structured arrangement. This arrangement included regular visits, special occasions, and holiday periods to ensure that the child maintains a close relationship with both parents. The court also ordered that the parents facilitate the child's travel between their respective residences and maintain open communication regarding the child's health and welfare.

The court's final orders included the discharge of all prior parenting orders and the establishment of equal shared parental responsibility. The child was to reside with the mother but spend time with the father according to a prescribed schedule that varied by location and included specific periods for overnight stays and special occasions. The court also mandated travel arrangements and required the parents to attend family dispute resolution before the child commenced full-time school.

Orders

Orders of the court

All prior parenting orders are discharged.

That the parents are to have equal shared parental responsibility for the child [X] born in 2007 (“the child”).

The child is to live with the mother.

The mother be permitted to relocate with the child to Perth, Western Australia.

The child is to spend time with the father in Western Australia as follows:

(a) For seven consecutive days per month from 8.00am until 5.00pm for nine months of each calendar year.

(b) In 2009 on Christmas Day from 12.00noon until 6.00pm Christmas Day;

(d) For a minimum of four hours on the child’s birthday and on Father’s Day if those special days should coincide with the child living with the mother;

(e) After the expiration of 12 months the time in order 5(a) shall include overnight time and during that period the mother shall be entitled to see the child for at least two hours every second day or at other times to be agreed between the parties;

(f) Such further time as agreed.

That the child spend time with the father in Tasmania as follows:

(a) For seven consecutive days per month from 8.00am until 5.00pm to be taken in no more than three separate months of each calendar year and not in the same months as order 5 (a) above;

(b) Commencing in 2010 from 6.00pm on Christmas Eve until 3.00pm on Christmas Day and in each alternate year thereafter in Tasmania.

In 2009 for the time referred to in order 5(a), the father spend time with the child in Western Australia in April, May, July, August, September, November, December 2009.

In 2009 for the time referred to in order 6(a), the father spend time with the child in Tasmania in June and October 2009.

That in the event that the father travels to Perth the mother shall facilitate the father spending further time with [X].

10.

From 2010 until the child attends full time school:

(a) the father shall travel 9 months per annum for the time referred to in order 5(a):

(b) the mother shall travel 3 months per annum at 4 month intervals or such other times as may be agreed for the time referred to order 6(a).

11.

That for the purposes of the father spending time with the child in Western Australia pursuant to order 5, the father will book and pay for his return airfares upon providing the mother with at least four weeks notice of the proposed dates of travel.

12.

That for the purposes of the father spending time with the child in Tasmania pursuant to order 6, the mother will book and pay for the return airfares for both herself and the child and provide the father with at least four weeks notice of the proposed dates and times of travel in writing.

13.

The child live with the mother at all other times, including as follows:

(a) In 2009 from Christmas Eve at 6.00pm until 12noon Christmas Day in Perth, Western Australia;

(b) Commencing in 2010 from 3.00pm Christmas Day until 12noon Boxing Day and in each alternate year thereafter, in Tasmania;

(c) Commencing in 2011 from 6.00pm Christmas Eve until 3.00pm Christmas Day and in each alternate year thereafter in Western Australia;

(d) For a minimum of four hours on the child’s birthday and on Mother’s Day if those special occasions should coincide with the father’s time with the child.

14.

The father have liberal communication with the child by telephone and/or webcam (as may be available).

15.

The mother keep the father informed in relation to the child’s health, welfare and development whilst the child is in the mother’s care.

16.

The father keep the mother informed in relation to the child’s health, welfare and development whilst the child is in the father’s care.

17.

The parties shall attend family dispute resolution prior to the child commencing full time school.

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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