GOODNER & JEPPESEN - [2012] FamCA 463

FAMILY COURT OF AUSTRALIA

GOODNER & JEPPESEN

[2012] FamCA 463

FAMILY LAW – CHILDREN – ORDERS – Variation – international relocation - parenting proceedings involving the parties’ two children aged twelve and nine - where father lives in Sydney and mother in Denmark – where previous family court orders made in 2009 provided that the children live in Australia for a period of two years then relocate to live with the mother in Denmark – children lived in Australia for the two year period and spent time with the mother in Denmark – where the applicant father seeks variation of the 2009 Orders that the children remain living in Australia – interim orders made in November 2011 suspending the operation of the 2009 Orders - Rice v Asplund considerations – changed circumstances – where the father asserted that the eldest child expressing a view in favour of living in Australia, the mother having another child and the mother not maximising on her time in Australia as was contemplated amounted to a change of circumstance – where the state of the evidence is that at no time did the father confirm to the children they would be going to Denmark – evidence of the emotional state of the eldest child having clearly deteriorated from the date of the Family Consultant Memorandum to the Court to the date of this hearing – held that it was entirely predictable that with greater age and maturity the children would begin to express opinions which was contemplated by the Family Consultant and the court in 2009 – held risk to the children’s relationship with each other and each of their parents is such that even if the expression of these views represents a change of circumstances it is insufficient to justify further hearing even on a limited basis – held to avoid further pressure on the children particularly the eldest child the matter should be determined as quickly as possible without a Family Report or further hearing – orders dismissing and discharging the relevant orders suspending the 2009 Orders

Family Law Act 1975 (Cth) ss 60CC, 69ZN, 69ZR, 92Q

Miller v Harrington (2009) FLC 93-383
Rice v Asplund (1979) FLC 90-725
DL & W (2012) FLC 93-496

APPLICANT:

Mr Goodner

RESPONDENT:

Ms Jeppesen

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Sutherland

FILE NUMBER:

SYC

294

2009

DATE DELIVERED:

30 May 2012

PLACE DELIVERED:

Sydney

PLACES HEARD:

Sydney and Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

8 March 2012
29 March 2012
20 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tockar

SOLICITOR FOR THE APPLICANT:

Hamish Cumming Family Law

COUNSEL FOR THE RESPONDENT:

Mr Boyd

SOLICITOR FOR THE RESPONDENT:

Fox O’Brien

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms O’Rourke

Legal Aid Sutherland

orders

That the Application of the Father filed on 25 November 2011 is dismissed.
That Orders 2, 3, 4, 7, 8 and 9 made on 28 November 2011 are discharged.
That the Independent Children’s Lawyer explain the Orders and outcome of proceedings to…

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 & JEPPESEN

Details

AGLC: GOODNER & JEPPESEN [2012] FamCA 463
Case: [2012] FamCA 463
Decision Date: 30 May 2012

CaseChat Overview and Summary

The case of *Goodner & Jeppesen* concerned an application by the Father, filed on 25 November 2011, which was heard by Cleary J in the Family Court of Australia. The dispute involved orders made on 28 November 2011, which the Father sought to have varied or set aside.

The primary legal issue before the court was whether the existing orders, made on 28 November 2011, should be discharged. This required the court to consider the particulars of the obligations created by those orders, the potential consequences of contravention, and the availability of assistance for parties to comply with them, as contemplated by sections 65DA(2) and 62B of the *Family Law Act 1975*.

Cleary J dismissed the Father's application. Consequently, orders 2, 3, 4, 7, 8, and 9 made on 28 November 2011 were discharged. The court also directed that the Independent Children’s Lawyer explain the orders and the outcome of the proceedings to the children before being discharged. Furthermore, the court ordered that a Fact Sheet, detailing the obligations, consequences of contravention, and sources of assistance, be attached to the orders and form part of them, pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975*.

Orders

Orders of the court

That the Application of the Father filed on 25 November 2011 is dismissed.

That Orders 2, 3, 4, 7, 8 and 9 made on 28 November 2011 are discharged.

That the Independent Children’s Lawyer explain the Orders and outcome of proceedings to the children and is thereafter discharged.

Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in 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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