Muldoon & Carlyle

Case [2012] FamCAFC 135

FAMILY COURT OF AUSTRALIA

MULDOON & CARLYLE [2012] FamCAFC 135

FAMILY LAW – APPEAL – CHILDREN – with whom children live – relocation – intended relocation by mother to a town two hours’ drive from father’s residence – held at first instance that it was in the children’s best interests to continue living with their mother, even if she relocated – substantial and significant time with father not practicable – orders that children live with mother and spend time alternate weekends with father – father argued on appeal that first instance judge had failed to allow counsel to pursue enquiry into the mother’s motivations for moving, the necessity of the move and the possibility of her remaining at her current location – held on appeal that first instance judge correctly identified that the mother was free to move wherever she chose – issue was with which parent the children should live, having regard to their best interests – appeal dismissed.

FAMILY LAW – APPEAL – EVIDENCE – family report – father asserted that first instance judge failed to provide sufficient reasons for accepting the family consultant’s evidence – held on appeal that careful and extensive reasons were given, and that quoting from a family report, where the judge’s own observations coincide, does not constitute appellable error.
Family Law Act 1975 (Cth) ss 60CC, 65DAA, 117
AMSv AIF (1999) 199 CLR 160
Andrew & Delaine [2009] FamCAFC 182
Bartlett and Bartlett (1994) FLC 92-455
Bennett and Bennett (1991) FLC 92-191
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Collins and Collins (1985) FLC 91-603
D & D (Costs) (No 2) (2010) FLC 93-435
D & P [2006] FamCA 170
D and SV (2003) FLC 93-137
Fennessy &Gregorian (2009) FLC 93-399
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123
Friscioni & Friscioni [2010] FamCAFC 108
Goode and Goode (2006) FLC 93-286
Hall and Hall (1979) FLC 90-713
Hannigan & Sorraw [2010] FamCAFC 257
Kohan and Kohan (1993) FLC 92-340
Limousin & Limousin(Costs) (2007) 38 Fam LR 478
MRR v GR (2010) 240 CLR 461
Munday v Bowman (1997) FLC 92-784
Stephens v Stephensand Anor (2010) 44 Fam LR 117
Yunghanns & Ors v Yunghanns & Ors and Yunghanns (2000) FLC 93-029
APPELLANT: Mr Muldoon
RESPONDENT: Ms Carlyle
INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland
FILE NUMBER: BRF 1472 of 2004
APPEAL NUMBER: NA 44 of 2011
DATE DELIVERED: 29 August 2012
PLACE DELIVERED: Canberra
PLACE HEARD: Brisbane
JUDGMENT OF: Bryant CJ, Finn & Strickland JJ
HEARING DATE: 3 November 2011
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 11 February 2011
LOWER COURT MNC: [2011] FamCA 51

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Clutterbuck
SOLICITOR FOR THE APPELLANT: Sanderson & Parks
COUNSEL FOR THE RESPONDENT: Mr George with Mr Mould
SOLICITOR FOR THE RESPONDENT: Family Law Doyle Keyworth & Harris
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Cameron with Ms Heaney
SOLICITOR…

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Details
AGLC
MULDOON & CARLYLE [2012] FamCAFC 135
Case
[2012] FamCAFC 135
Decision Date

CaseChat Overview and Summary

In the case of Muldoon & Carlyle, the dispute before the court was between the parents over the arrangement for their children's residence and time spent with each parent. The case was heard and determined by the Family Court of Australia, with the appeal subsequently being heard by the Family Court of Australia as well. The father appealed the initial decision which granted the children's residence to the mother, even though she intended to relocate two hours away from the father's residence, and ordered alternate weekend time with the father. The father argued that the primary judge failed to adequately investigate the mother's motivations for the relocation, the necessity of the move, and the possibility of her remaining in her current location.

The legal issues before the court on appeal were whether the primary judge erred in failing to adequately consider the father's submissions about the mother's motivations for relocation, the necessity of the move, and the possibility of her remaining in her current location. Additionally, the father contended that the primary judge did not provide sufficient reasons for accepting the evidence of the family consultant. The court found that the primary judge was correct in identifying that the mother was free to move wherever she chose, and that the issue was with which parent the children should live, having regard to their best interests. The court also found that the primary judge had provided sufficient reasons for accepting the evidence of the family consultant, and that quoting from a family report where the judge's own observations coincide does not constitute an error.

The appeal was dismissed, and the father was ordered to pay the costs of the respondent mother and the independent children's lawyer of and incidental to the appeal. The costs were to be agreed upon by the parties within 48 days of the date of the orders, and if no agreement was reached, the costs were to be assessed on a party-party basis by a registrar of the Family Court of Australia.

Orders

Orders of the court

1.

The appeal be dismissed.

2.

The appellant father pay the costs of the respondent mother of and incidental to the appeal.

3.

The appellant father pay the costs of the independent children’s lawyer of and incidental to the appeal.

4.

The costs referred to in Orders 2 and 3 be in an amount as agreed by the parties within 48 days of the date of these orders, and failing such agreement, as assessed on a party-party basis by a registrar of the Family Court of Australia.

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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