Dhupam and Keyush - [2009] FamCA 208

FAMILY COURT OF AUSTRALIA

DHUPAM & KEYUSH

[2009] FamCA 208

FAMILY LAW – CHILDREN – Best interests – PROCEDURE – Variation of primary orders under s 70NBA – Whether order for time spent with one parent may be spent with other persons – Whether protection of children from physical or psychological harm extends to sickness incurred from interstate travel

Family Law Act 1975 (Cth)

Miller & Harrington [2008] FamCAFC 150
Rice & Asplund [1979] FLC 90-725
SPS & PLS [2008] FLC 93-363

Yard & Rodd (No.2) [2008] FamCA 1173

APPLICANT:

Mr Dhupam

RESPONDENT:

Ms Keyush

FILE NUMBER:

CAC

1684

2007

DATE DELIVERED:

18 February 2009

PLACE DELIVERED:

Canberra

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

18 February 2009

REPRESENTATION

COUNSEL & SOLICITOR FOR THE

APPLICANT:

Mr Farrar

COUNSEL FOR THE RESPONDENT:

Ms Godtschalk

SOLICITOR FOR THE RESPONDENT:

Ms Szczepanek

Orders

IT IS ORDERED THAT:

The primary parenting orders made by me on the 19^th of August 2008, subsequently amended by me on the 24^th of November 2008 and the 11^thof December 2008, are hereby discharged.
The Minute of Orders sought by consent by the parties, initialled and dated hereto by me, are given effect, save for the following amendment to Consent Order 12(d), which shall now include the words “before such expense(s) have been incurred” at the end of that sentence ending in the words “such expense or expenses.”

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

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 1684 of 2007

MR DHUPAM

Applicant

And

MS KEYUSH

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before me today have a somewhat unusual history in that they arose out of the desire on the part of both parties at one point and, more recently on the part of the mother, to vary orders that were made after a final hearing that occurred in the middle of 2008. The proceedings themselves grew out of an application by the father that the mother be dealt with for contravention without reasonable excuse of those orders to which I have previously referred.
As a consequence, under the terms of s 70NBA of the Family Law Act 1975 (Cth), the Court is empowered to make orders varying previous primary orders. It is unnecessary as events have occurred for me to investigate in any depth the extent and nature of the orders that might be made pursuant to s 70NBA. Suffice it to say that it would appear the section was originally incorporated into the legislation to enable changes to the orders without necessarily permitting or encouraging the parties to seek a fundamental reconsideration of the matters that underlay the original orders when they were originally made.

Difficulties in implementing previous orders

The existing application by the mother and the foreshadowed application by the father in his affidavit of 4 December 2008 were primarily some procedural…

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 Dhupam and Keyush

Details

AGLC: Dhupam and Keyush [2009] FamCA 208
Case: [2009] FamCA 208
Decision Date: 18 February 2009

CaseChat Overview and Summary

In the matter of *Dhupam and Keyush*, the District Court of New South Wales, presided over by Faulks DCJ, considered an application to discharge existing primary parenting orders and substitute them with new consent orders. The original parenting orders had been made on 19 August 2008 and subsequently amended on 24 November 2008 and 11 December 2008.

The central legal issue before the court was whether to discharge the previously made parenting orders and, if so, to give effect to a Minute of Orders sought by the consent of the parties. The court was also required to consider a specific amendment proposed to one of the consent orders.

Faulks DCJ discharged the primary parenting orders made in 2008. The court then gave effect to the Minute of Orders agreed upon by the parties, with one amendment. This amendment modified consent order 12(d) by adding the words "before such expense(s) have been incurred" to the end of the sentence that concluded with "such expense or expenses."

Orders

Orders of the court

IT IS ORDERED THAT:

The primary parenting orders made by me on the 19th of August 2008, subsequently amended by me on the 24th of November 2008 and the 11th of December 2008, are hereby discharged.

The Minute of Orders sought by consent by the parties, initialled and dated hereto by me, are given effect, save for the following amendment to Consent Order 12(d), which shall now include the words “before such expense(s) have been incurred” at the end of that sentence ending in the words “such expense or expenses.”

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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