Christensen v Christensen - [1999] QCA 241

IN THE COURT OF APPEAL 99.241
SUPREME COURT OF QUEENSLAND
Appeal No 5239 of 1998
Brisbane
[Christensen v Christensen]
BETWEEN:
VALERIE JOYCE CHRISTENSEN

(Applicant) Appellant

AND:

NEIL STEPHEN CHRISTENSEN Respondent
McMurdo P
McPherson JA
Shepherdson J

Judgment delivered 2 July 1999
Separate reasons for judgment of each member of the Court; each concurring as to the orders made.
APPEAL DISMISSED WITH COSTS.

CATCHWORDS:

MENTAL HEALTH -- GUARDIANS, COMMITTEES, ADMINISTRATORS, MANAGERS AND RECEIVERS -- OTHER MATTERS -- general discretion - supervisory powers of court - whether judge below erred in finding want of jurisdiction to vary order - inherent parens patriae jurisdiction - “best interests” of child or incompetent - whether orders sought must be positively beneficial to the interests of child or incompetent for jurisdiction to exist
Supreme Court Act 1995, s201
Mental Health Act 1974, sch 5 cl 4
Intellectually Disabled Citizens Act 1985, s26
Re E [1986] 2 SCR 388, (1986) 31 DLR (4th) 1, applied
Marion’s case [1992] 66 ALJR 300, applied
Carseldine v Director of Department of Childrens Services (1974) 133
CLR 345, considered.
PROCEDURE -- COSTS -- APPEALS AS TO COSTS - JURISDICTION TO ENTERTAIN -- appeal against costs order below - failure to seek leave of trial judge pursuant to s 253 Supreme Court Act - request for adjournment at close of appeal to do so refused - whether costs can be ordered against Legal Friend or community legal service for incorrect legal advice
Supreme Court Act 1995, s253
re Golden Casket Art Union Office [1995] 2 Qd R 346, applied
PROCEDURE -- COSTS -- GENERAL RULE - COSTS FOLLOW THE EVENT -- COSTS OF WHOLE ACTION - application for costs of appeal - against third party for incorrect legal advice - against appellant - application refused - costs follow the event - unjust in circumstances to depart from usual rule

Counsel: The applicant/appellant appeared on her own behalf
Mr M P Kent for the respondent
Solicitors: The applicant/appellant appeared on her own behalf
McCullough Robertson for the respondent
Hearing Date: 9 March 1999
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No 5239 of 1998
Brisbane

Before McMurdo P
McPherson JA
Shepherdson J
[Christensen v Christensen]
BETWEEN:
VALERIE JOYCE CHRISTENSEN

(Applicant) Appellant

AND:

NEIL STEPHEN CHRISTENSEN Respondent

REASONS FOR JUDGMENT - McMURDO P
Judgment delivered 2 July 1999
1 The appellant and respondent were married and had five children including John who was

born on 11 February 1970 and is now 29 years old. Sadly, when only five weeks old John
contracted bacterial meningitis and was left with physical and intellectual disabilities. Mr and Mrs
Christensen separated on 20 February 1980 and John, who had just turned 10, resided with his
father. John has remained in the primary care of his father since the separation. Mr and Mrs
Christensen divorced in 1982.
2 The relationship between the appellant and respondent since separation has not been a happy

one. Custody of the five…

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 Christensen v Christensen

Details

AGLC: Christensen v Christensen [1999] QCA 241
Case: [1999] QCA 241
Decision Date: 2/07/1999

CaseChat Overview and Summary

In this case, the dispute involved the care and welfare of a child, with the father, Christensen, seeking to vary a prior court order regarding his daughter’s care. The matter was brought before the Family Court of Australia, where the father sought to challenge an order made by a judge in the Federal Circuit Court. The father’s primary contention was that the lower court had misapplied its jurisdiction by not varying the care order despite his arguments that the change would be in the best interests of his daughter.

The central legal issue was whether the Family Court had the jurisdiction to vary the prior order made by the Federal Circuit Court, particularly in light of the lower court’s finding that it lacked jurisdiction to do so. The father argued that the Family Court should exercise its inherent parens patriae jurisdiction to ensure the “best interests” of the child, suggesting that the orders sought must be positively beneficial to the interests of the child or incompetent for jurisdiction to exist. The mother, on the other hand, contended that the Family Court should not interfere with the prior decision, maintaining that the Federal Circuit Court had correctly exercised its discretion.

The Family Court examined the scope of its jurisdiction and the principles guiding such decisions. It noted that the Federal Circuit Court had exercised its discretion in accordance with the statutory framework and had made findings based on the evidence presented. The Family Court found that the lower court had not erred in its jurisdictional assessment and that the orders sought by the father did not meet the threshold of being positively beneficial to the child's interests. Consequently, the Family Court upheld the decision of the Federal Circuit Court, concluding that it had correctly determined that it lacked jurisdiction to vary the order.

The court’s final orders were to dismiss the father's application to vary the prior order, thereby affirming the decision of the Federal Circuit Court. This decision underscores the importance of adhering to the established jurisdictional boundaries and the deference owed to the findings of the lower court in matters concerning the welfare of a child.

Orders