Vernon and Buckley - [2012] FMCAfam 638

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VERNON & BUCKLEY

[2012] FMCAfam 638

FAMILY LAW – Parenting and property issues – mother’s desire to relocate to rural NSW from Melbourne – whether such relocation in children’s best interests – what time to be spent with father if relocation permitted – property dispute – father making greater contribution and having substantially greater income – consideration of parties’ future needs.

Family Law Act 1975, ss.60B, 60CC

Brickley & Lidcombe [2012] FMCAfam 301
Goode v Goode [2006] FamCA 1346
In the marriage of Farnell (1996) FLC 92-681
AJO v GRO (FLR) (2005) FLC 93-218

Applicant:

MR VERNON

Respondent:

MS BUCKLEY

File Number:

MLC 9370 of 2011

Judgment of:

Burchardt FM

Hearing dates:

21, 22 and 23 May 2012

Date of Last Submission:

23 May 2012

Delivered at:

Melbourne

Delivered on:

4 July 2012

REPRESENTATION

Counsel for the Applicant:

Mr Salamanca

Solicitors for the Applicant:

Carew Counsel Pty Ltd

Counsel for the Respondent:

Mr Dickson

Solicitors for the Respondent:

JH Legal Pty Ltd

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 9370 of 2011

MR VERNON

Applicant

And

MS BUCKLEY

Respondent

REASONS FOR JUDGMENT

Introduction

This is a dispute about parenting issues and property issues. Both issues have been hard fought but, perhaps unsurprisingly, it is the children’s issues that have raised the greatest degree of emotion in the parties.
The mother, who it is agreed has been the primary carer of [X], born [in] 2005, and [Y], born [in] 2007, wishes to relocate from Melbourne to [L], a country town of approximately 6,000 inhabitants in New South Wales. The father wishes the mother to remain in Melbourne. There are competing proposals as to the time to be spent in either eventuality.
So far as property matters are concerned, the parties agree that superannuation be split equally, but the father proposes an overall 60/40 division in the mother’s favour and the mother proposes an 80/20 division.
For the reasons that follow, I am going to permit the mother to relocate to [L] but ensure that the children spend significant amounts of time with their father, both there and in Melbourne, and I will divide the property pool 67 ½ / 32 ½ in favour of the mother.

Facts either agreed or not the subject of substantial dispute

The father was born [in] 1973 and his family in the main live in either Brisbane or on the Gold Coast. He has been employed by [T] for over 20 years and is a very well regarded employee. His current full-time remuneration package is $352,000, which was increased from $340,000 last September. It seems reasonable to suppose that he will continue to achieve increases although not, given the company’s apparently present poor financial outlook, perhaps of quite the same amount.
The mother was born [in] 1975. She grew up in [L]…

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 Vernon and Buckley

Details

AGLC: Vernon and Buckley [2012] FMCAfam 638
Case: [2012] FMCAfam 638
Decision Date: 4 July 2012

CaseChat Overview and Summary

This case concerns the marriage of Mr Vernon and Ms Buckley and addresses both parenting and property issues. The primary issue is whether Ms Buckley should be permitted to relocate from Melbourne to [L], a rural town in New South Wales, with the children, [X] and [Y], born in 2005 and 2007 respectively. The father, Mr Vernon, opposes the relocation. The court must also determine the time to be spent with the father if relocation is allowed and divide the property pool between the parties. After carefully considering the evidence and submissions, the court permits the relocation but requires the children to spend significant time with their father both in [L] and Melbourne. The court orders the property pool to be divided 67 ½ / 32 ½ in favour of Ms Buckley.

The court found that Ms Buckley's primary motivation for relocating was to distance herself from Mr Vernon's new relationship with Ms P, which caused her significant emotional distress. However, the court also recognised that relocating would provide Ms Buckley with much-needed support from her family, particularly her mother, and improve her economic circumstances. The father's capacity to travel and his substantial financial resources mitigate the impact of the relocation on the children's relationship with him. The court orders regular contact by Skype and one long weekend visit to Melbourne per school term. The court also orders equal shared parental responsibility and determines the property settlement to be just and equitable, considering the parties' future needs and contributions.

Orders