Godinez and Stanislaw - [2011] FamCA 603

FAMILY COURT OF AUSTRALIA

GODINEZ & STANISLAW

[2011] FamCA 603

FAMILY LAW – CHILDREN – Best interests – Change of surname

Family Law Act 1975 (Cth)

Raymond & Harold [2009] FamCA 155.
George & Radford [1976] FLC 90-060.
Chapman & Palmer [1978] FLC 90-510.
Beach & Stemmler [1979] FLC 90-692.
Kelley [1981] FLC 91-002.
Skrabl & Leach [1989] FLC 92-016.
Mahony & McKenzie [1993] FLC 92-408.

Flanagan v Handcock [2002] FLC 93-102.

APPLICANT:

Ms Godinez

RESPONDENT:

Mr Stanislaw

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

2639

2007

DATE DELIVERED:

6 April 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

6 April 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Goodchild

SOLICITOR FOR THE APPLICANT:

Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT:

Father in Person

SOLICITOR FOR THE RESPONDENT:

Father in Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Liverpool

Orders

That the document headed Orders Proposed by the Independent Children’s Lawyer is hereby marked Court Exhibit “1”.
That by consent Orders are made in accordance with paragraphs 1, 2, 3, 4 in its sub-paragraphs, 5 in its sub-paragraphs, 6, 7, 8, 9 in its sub-paragraphs, 10, 11 in its sub-paragraphs in Exhibit “1”, copy annexed hereto.
Noted the matters set out in paragraphs A, B, C, D, E, F, and G under the heading of notations in Exhibit “1” which leaves to be resolved the issue of the surname of the children.
That in the event of the mother wishing to travel overseas with the children the mother is to provide the father with notice of not less than twenty-eight days of her intention of travel and setting out the destinations.
That the mother be permitted to change the surnames of the children, the subject of these proceedings, B born … 1997, C born … 2000 and D born … 2002 to the surname of Godinez.
That the husband pay to the Legal Aid Commission of New South Wales the costs of the Independent Children’s Lawyer in the sum of $4,000. Such sum is to be paid within 12 months of this day.
That all applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Godinez & Stanislaw has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2639 of 2007

Ms Godinez

Applicant

And

Mr Stanislaw

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This matter has now occupied several days of hearing. To the parties’ great credit, they have been able to reach agreement about…

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 Godinez and Stanislaw

Details

AGLC: Godinez and Stanislaw [2011] FamCA 603
Case: [2011] FamCA 603
Decision Date: 6 April 2011

CaseChat Overview and Summary

In the matter of *Godinez and Stanislaw*, Collier J of the Family Court of Australia considered a dispute between the parties concerning their children. The proceedings involved applications and cross-applications brought by the parties, with the Independent Children’s Lawyer playing a role in representing the children's interests.

The primary legal issues before the court were the surnames of the children and the mother's ability to travel overseas with them. The court was also required to determine the costs associated with the Independent Children’s Lawyer and to resolve all outstanding applications and issues between the parties.

Collier J made orders by consent, largely adopting the proposed orders of the Independent Children’s Lawyer. The court permitted the mother to change the surnames of the children to Godinez. Further, the mother was granted permission to travel overseas with the children, provided she gave the father at least twenty-eight days' notice of her travel plans and destinations. The court also ordered that the husband pay $4,000 towards the costs of the Independent Children’s Lawyer within twelve months. All applications and cross-applications were dismissed, and all issues were removed from the Active Pending Cases List.

Orders

Orders of the court

That the document headed Orders Proposed by the Independent Children’s Lawyer is hereby marked Court Exhibit “1”.

That by consent Orders are made in accordance with paragraphs 1, 2, 3, 4 in its sub-paragraphs, 5 in its sub-paragraphs, 6, 7, 8, 9 in its sub-paragraphs, 10, 11 in its sub-paragraphs in Exhibit “1”, copy annexed hereto.

Noted the matters set out in paragraphs A, B, C, D, E, F, and G under the heading of notations in Exhibit “1” which leaves to be resolved the issue of the surname of the children.

That in the event of the mother wishing to travel overseas with the children the mother is to provide the father with notice of not less than twenty-eight days of her intention of travel and setting out the destinations.

That the mother be permitted to change the surnames of the children, the subject of these proceedings, B born … 1997, C born … 2000 and D born … 2002 to the surname of Godinez.

That the husband pay to the Legal Aid Commission of New South Wales the costs of the Independent Children’s Lawyer in the sum of $4,000. Such sum is to be paid within 12 months of this day.

That all applications and cross applications be and are hereby dismissed.

That all issues be removed from the Active Pending Cases List.

That all material produced on subpoena be returned not before fifty-six days from the date of these Orders.

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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