Goodner and Jeppesen - [2009] FamCA 1052

FAMILY COURT OF AUSTRALIA

GOODNER & JEPPESEN

[2009] FamCA 1052

FAMILY LAW – CHILDREN – INTERNATIONAL RELOCATION – Mother sought to relocate the children to Denmark to live with her – Father opposed relocation and sought orders that the children live with him in Australia – Mother is of Danish background, has travelled to Denmark with the children throughout their lives – No concerns of parental capacity – Expert evidence that the children’s best interests would be met by spending no less than significant time with each parent – Assessment of each parties proposals and a ‘third option’ that deferred any relocation – Children to remain in Australia for two years – Mother at liberty to relocate with children in 2012

Family Law Act 1975 (Cth) ss 4, 60CC, 61DA, 65DAA

APPLICANT:

Mr Goodner

RESPONDENT:

Ms Jeppesen

FILE NUMBER:

SYC

294

2009

DATE DELIVERED:

6 November 2009

PLACE DELIVERED:

BRISBANE

PLACE HEARD:

SYDNEY

JUDGMENT OF:

WARNICK J

HEARING DATE:

7 – 9 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levy

SOLICITOR FOR THE APPLICANT:

Hamish Cumming Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

Fox O’Brien

Orders

IT IS ORDERED BY CONSENT

That the parties have equal shared parental responsibility for M, born … October 1999 and E, born … December 2002 (“the children”).

IT IS FURTHER ORDERED:

That until 31 December 2011, each party; MR GOODNER born … 1962 and MS JEPPESEN born … 1966, their servants and/or agents be and are herby restrained from removing or attempting to remove or causing or permitting the removal of the said children from the Commonwealth of Australia, without agreement of both parties, in writing and signed by each, or further order of the court.
That the Australian Federal Police give effect to order 2 above by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the court orders its removal.
That, provided the mother remains resident in Sydney, Australia until 31 December 2011, then the children live with the father in alternate weeks from 6.00pm Monday until 6.00pm the following Monday to commence according to the pattern established by interim orders made 25 March 2009.
That the children live with the mother in alternate weeks from 6.00pm Monday until 6.00pm the following Monday to commence according to the pattern established by interim orders made 25 March 2009.
That in the event the children are not otherwise living with the father, and notwithstanding any other order, the children shall spend time with the father on the following occasions of special significance:
(a)on the children’s birthday as follows:
(i) on a school day from after school until 7.00pm;
(ii) on a non-school day from 2.00pm until 8.00pm.
(b)from 2.00pm Christmas Eve until 2.00pm boxing Day in odd numbered years;
(c)on Father’s Day from 9.00am until 5.00pm;
(d)on the father’s birthday as…

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 Goodner and Jeppesen

Details

AGLC: Goodner and Jeppesen [2009] FamCA 1052
Case: [2009] FamCA 1052
Decision Date: 6 November 2009

CaseChat Overview and Summary

This matter concerned orders made by consent between Mr Goodner and Ms Jeppesen regarding their two children, M and E. The orders addressed issues of parental responsibility, the children's residence, and their time with each parent, including provisions for international travel and relocation.

The court was required to determine the terms of final parenting orders, including the allocation of parental responsibility, the primary residence of the children, and the specific arrangements for each parent to spend time with the children. Further issues included the conditions under which the children could be removed from Australia, the process for international travel, and the arrangements for the children to reside in Denmark with the mother from January 2012, as well as reciprocal arrangements should the mother relocate to Denmark without the children.

The court made orders by consent, establishing equal shared parental responsibility for the children. It imposed a restraint on the removal of the children from the Commonwealth of Australia until 31 December 2011, with the Australian Federal Police to place the children's names on the Airport Watch List. The orders detailed a week-about living arrangement between the parents, with specific provisions for time with each parent on significant occasions such as birthdays and public holidays. The orders also outlined a framework for international travel, requiring written notice and the exchange of passports, and crucially, permitted the mother to remove the children to Denmark from 1 January 2012, with detailed arrangements for the father to spend time with the children in Australia during school holidays and for reciprocal arrangements should the mother relocate to Denmark without the children.

Orders

Orders of the court

IT IS ORDERED BY CONSENT

That the parties have equal shared parental responsibility for M, born … October 1999 and E, born … December 2002 (“the children”).

IT IS FURTHER ORDERED:

That until 31 December 2011, each party; MR GOODNER born … 1962 and MS JEPPESEN born … 1966, their servants and/or agents be and are herby restrained from removing or attempting to remove or causing or permitting the removal of the said children from the Commonwealth of Australia, without agreement of both parties, in writing and signed by each, or further order of the court.

That the Australian Federal Police give effect to order 2 above by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until the court orders its removal.

That, provided the mother remains resident in Sydney, Australia until 31 December 2011, then the children live with the father in alternate weeks from 6.00pm Monday until 6.00pm the following Monday to commence according to the pattern established by interim orders made 25 March 2009.

That the children live with the mother in alternate weeks from 6.00pm Monday until 6.00pm the following Monday to commence according to the pattern established by interim orders made 25 March 2009.

That in the event the children are not otherwise living with the father, and notwithstanding any other order, the children shall spend time with the father on the following occasions of special significance:

(a) on the children’s birthday as follows:

(i) on a school day from after school until 7.00pm;

(ii) on a non-school day from 2.00pm until 8.00pm.

(b) from 2.00pm Christmas Eve until 2.00pm boxing Day in odd numbered years;

(d) on the father’s birthday as follows:

(i) on a school day from after school until before school the following day;

(ii) on a non-school day from 9.00am until 5.00pm.

That in the event the children are not otherwise living with the mother, and notwithstanding any other order, the children shall spend time with the mother on the following occasions of special significance:

(a) on the children’s birthday as follows:

(i) on a school day from after school until 7.00pm;

(ii) on a non-school day from 2.00pm until 8.00pm.

(b) from 2.00pm Christmas Eve until 2.00pm Boxing Day in even numbered years;

(d) on the mother’s birthday as follows:

(i) on a school day from after school until before school the following day;

(ii) on a non-school day from 9.00am until 5.00pm.

That in order to facilitate the children living with each of the parties, the transportation to and from each party’s residence at the commencement and conclusion of such living periods shall be shared equally between the parties.

That the children have telephone communication with the parent with whom they are not living at all reasonable times.

10.

That each parent ensures the other parent is kept informed of:

(a) any medical problems or illness suffered by the children while in their care;

(b) any medication that has been prescribed for the children;

(d) their current residential address and contact telephone number and advise the other party of any changes to these details within 48 hours of such change occurring.

11.

That unless otherwise agreed, each party be permitted to remove the children from Australia to travel overseas twice per year, provided that:

(a) the travelling party provides to the other party six (6) weeks prior written notice of the intended trip specifying the proposed dates of the trip and destination;

(b) the travelling party provides to the other party two (2) weeks written notice of the intended trip specifying the date and time of the departure, the means of transportation and all details thereto including the details of the airline whom they will be travelling with, the intended destination, contact number and addresses for the children for the duration of the trip and the intended date and time of return.

(i) the non-travelling party shall have additional periods of time equivalent to that foregone whilst the children are overseas; and

(ii) the make-up period shall be taken at dates and times nominated by the non-travelling party following the children’s return from overseas.

12.

That within 24 hours of the making of these orders, the mother shall provide the father with the passport of M, which shall thereafter be retained by the father.

13.

That the passport of E shall be retained by the mother.

14.

That within 24 hours of the mother complying with order 11 above, the father will release the passport of the child M to the mother and she shall return the passport to the father within 24 hours of returning from any travel with the children in accordance with order 11 above.

15.

That within 24 hours of the father complying with order 11 above, the mother will release the passport of the child E, to the father and he shall return the passport to the mother within 24 hours of returning from any travel with the children in accordance with order 11 above.

16.

That the father be responsible for the cost of economy class travel for the children and the mother from Sydney to H, Denmark on two occasions each year.

17.

That the mother be at liberty to remove the children from Australia to reside in Denmark as and from 1 January 2012 and the father release to the mother, not less than 14 days prior to that date, the passport of the child M.

18.

That in the event the mother relocates with the children to Denmark, the children shall spend time with the father as agreed but failing agreement as follows:

(a) in Australia, during the Danish Christmas school holidays for a minimum of 4 weeks in each and every year;

(b) in Australia, during the Danish July/August school holiday period for a minimum of 4 weeks in each and every year;

(c) for the purpose of the above, and unless otherwise agreed between the parties, the mother shall deliver the children to the father at Sydney International Airport at the commencement of his time with the children and the father shall return the children to the mother at Sydney International Airport at the conclusion of his time with the children.

19.

That in addition to the above, the father be permitted to spend time with the children when he travels to Denmark and to remove the children from Denmark during such periods provided he give the mother notice of the intended dates, including the date and time of the departure, the means of transportation and all details thereto including the details of the airline whom they will be travelling with, the intended destination, contact number and addresses for the children for the duration of the trip and the intended date and time of return.

20.

That the cost of travel in order 18 be shared equally between the parties.

21.

That the mother ensure the children are available for communication with the father by telephone or Skype each day between 7.00am and 8.00am (Danish time), with the father to initiate such communication.

22.

That in the event the children express a wish to have telephone communication with the father, or a member of the father’s family, the mother will do all acts and things to facilitate such telephone communication.

23.

That within 14 days of the children’s subsequent enrolment at any school, the mother shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of the children’s school reports, any merit cards, any written material pertaining to the children’s academic and extra curricular activities, and all order forms for school photographs of the children.

24.

That the mother ensure the father is kept informed of:

(a) any medical problems or illness suffered by the children while they are in her care;

(b) any medication that has been prescribed for the children;

(d) the children’s current residential address and contact telephone number and any change to these details within 48 hours of such change occurring.

25.

That in the event the mother relocates to Denmark without the children, the children live with the father and spend time with the mother as follows:

(a) in Denmark, during the Australian Christmas school holidays for a minimum of 4 weeks in each and every year;

(b) In Denmark, for the entire Australian June/July school holiday period in each and every year;

(c) for the purpose of the above, and unless otherwise agreed between the parties, the father shall deliver the children to the mother at Copenhagen International Airport at the commencement of her time with the children and the mother shall return the children to the father at Copenhagen International Airport at the conclusion of her time with the children.

26.

That in addition to the above, the mother be permitted to spend time with the children when she travels to Australia and to remove the children from Australia during such periods provided she give the father notice of the intended date and time, including the date and time of the departure, the means of transportation and all details thereto including the details of the airline whom they will be travelling with, the intended destination, contact number and addresses for the children for the duration of the trip and the intended date and time of return.

27.

That the cost of travel in order 25 be shared equally between the parties.

28.

That the father ensures the children are available for communication with the mother by telephone or Skype each day between 7.00am and 8.00am (Sydney time), with the mother to initiate such communication.

29.

That in the event the children express a wish to have telephone communication with the mother, or a member of the mother’s family, the father will do all acts and things to facilitate such telephone communication.

30.

That within 14 days of the children’s subsequent enrolment at any school, the father shall do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the mother copies of all of the children’s school reports, any merit cards, any written material pertaining to the children’s academic and extra curricular activities, and all order forms for school photographs of the children.

31.

That the father ensure the mother is kept informed of:

(a) any medical problems or illness suffered by the children while they are in his care;

(b) any medication that has been prescribed for the children;

(d) the children’s current residential address and contact telephone number and any change to these details within 48 hours of such change occurring.

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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