GOODNER & JEPPESEN

[2011] FamCA 1069

FAMILY COURT OF AUSTRALIA

GOODNER & JEPPESEN [2011]FamCA 1069

FAMILY LAW – CHILDREN – Best Interests – Whether parenting orders should be suspended –Whether the children should change of country of residence – change in circumstance – views of the children – weight to be given to views

Family Law Act 1975(Cth)

Rice and Asplund (1979) FLC 90-725

APPLICANT: Mr Goodner

RESPONDENT: Ms Jeppesen

FILE NUMBER: SYC 294 of 2009

DATE DELIVERED: 28 November 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 28 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cumming

SOLICITOR FOR THE APPLICANT: Hamish Cumming Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Fox O’Brien Solicitors

Orders

1. The documents produced by D School by way of subpoena are released to the parties and their legal representatives.

2. Pending further order, orders 17 – 24 inclusive made by the Court on 6 November 2011 are suspended.

3. Pending further order, the parties are to care for the children between them in the same manner as they have done so during 2011.

4. I order that pursuant to section 68L (2) of the Family Law Act, the interests of the children M born … 1999 and E born … 2002 be independently represented by a lawyer and it is requested that the Legal Aid Commission of New South Wales make arrangements as soon as practicable to secure that independent representation of the child's interests.

5. The Independent Children’s Lawyer has leave to inspect and copy any subpoena material and the Court file.

6. The parties and children are to attend upon the family consultant at 9am on 19 December 2011 for a child inclusive conference. I request that the family consultant provide a short report particularly focusing on the views of the children in relation to the requirement for them to move to Country G with their mother.

7. Unless specified in this order or subsequent orders and until further order, MR GOODNER and/or MS JEPPESEN and their servants and agents are restrained from removing the children M (a male) born … 1999 and E (a female) born … 2002 from Australia.

8. The Marshal and all officers of the Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.

9. Pending further order, the Court requests that the Australian Federal Police place the name(s) of the children M (a male) born … 1999 and E (a female) born … 2002 on the Airport Watch List at all points of international arrivals and departures in Australia.

10. The mother is permitted to remove the children M (a male) born … 1999 and E (a female) born … 2002 from Australia to Country G for the purpose of a holiday between 19 December 2011 and 22 January 2012.

11. The Court requests that the Australian Federal Police temporarily remove the names of the children M (a male) born … 1999 and E (a female) born … 2002  from the Airport Watch List at all points of international arrivals and departures in Australia for the period 19 December 2011 to 22 January 2012.

12. I note the agreement between the parties that the father will collect children from the mother in City H, Country G on 20 January 2012 for the purpose of returning them to Australia, with the proposed entry date into Australia being 22 January 2012.

13. The matter is listed before the Docket Registrar on a date to be arranged, on or about 23 January 2012 with a view to the Docket Registrar considering what further listings the matter requires.

14. I otherwise grant leave to the parties to relist the matter on short notice before a duty judge.

15. I note the agreement between the parties that the mother will be responsible for the costs of travel for the children from Australia to City H and the father will be responsible for the costs of travel for the children from City H to Australia in January 2012.

16. Pursuant to s65DA(2) and s62B, 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.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC294 of 2009

Mr Goodner

Applicant

And

Ms Jeppesen

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the father, Mr Goodner, that the orders made on 6 November 2009 by Justice Warnick be suspended in some cases and varied in relation to others.

2. The children the subject of those orders are M, born in 1999 (12 years old), and E, born in 2002 (shortly to be 9 years old).

3. The order which requires some interim determination now is order 17 which provides as follows:

   That the mother be at liberty to remove the children from Australia to reside in [Country G] 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].

4. The determination by the Trial Judge that the children move to Country G with the mother more than two years hence is conceded by the mother’s counsel to be an unusual one. That is it is an unusual circumstance for the Court to make such a significant change in the children’s circumstances some two plus years in the future, particularly where one of those children will then be 12 years of age.

5. The Trial Judge recognised that unusual circumstance by providing in his reasons at paragraph 111 where he said:

   Though some circumstances likely to affect the decision as to what will be in the children’s best interests in two years time may not be as expected, their best interests can be protected by the availability of further consideration by the Court if sufficient change of circumstance occurs.  While the prospect of further proceedings is to be considered, I do not think the likelihood any greater from the arrangement that I propose, promoting as it does, what is presently in the children’s best interests than would arise if change as sought by either parent was implemented with all the potential for harm that that contains.

6. I also note from the reasons of Justice Warnick that this was a case which was decided on a slim margin.  He said at paragraph 109:

   If there were no other options I would lean marginally towards the mother’s proposal because:

   ·    If the children are in [Country] G the father may be able to visit more frequently than the mother if they remain in Australia.

   ·    I have the concerns expressed arising out of the foundation and intensity of the father’s dealings about loss of the children.

7. In the hearing determined by Justice Warnick the mother ran a case where she told the Court she would be leaving Australia with or without the children.  His Honour did not accept that was the case and he concluded she would remain in Australia until December 2011 and participate in a week about residence arrangement.

8. The chronology, which is largely agreed, provides that the mother left Australia before His Honour delivered reasons in early November 2009.  She was then living in Country G until January 2011 when she returned to live in Australia, thus there was a period of about 15 months when she lived in Country G, although she visited Australia for a short period in January 2010 and April 2010 to spend time with the children.  Less there be any misunderstanding about this period, it is common ground that the children spent time in Country G with their mother also during that 15 month period.

9. Another matter of significance in the agreed chronology is that the mother gave birth to a daughter in August 2010.  This is a circumstance not contemplated by the parties or the Trial Judge in the hearing conducted in September 2009.

10. It is the father’s case that the children have now expressed a view about where they wish to live in the future.  He says both children have said that they wish to remain living in Australia.  In particular, M, who is now 12 and is due to commence high school next year, has said he wants to attend D School with his friends.  His peer group has grown closer since the time he saw the family consultant in 2009 for the preparation of a report.

11. It is common ground that when the children saw the family consultant in 2009 (some time prior to the hearing in September 2009) neither expressed a view one way or the other about living in Australia or in Country G.

12. The child, M, has been enrolled to attend D School commencing first term next year.  The Country G school year commences in August each year.  If the children travel to Country G with their mother in December this year, they would be enrolled in school halfway through the school year.

13. The matter which the Court is asked to determine is effectively a stay of the orders made on 6 November 2009 to the extent that they permit the mother to relocate the residence of the children as from December this year.  By and large it is well established law that orders of a Court should not be stayed unless there is compelling reason.  The compelling reason proposed by the father in this case relates to the wellbeing of the children.  It also raises the issue of the children’s right at this time to be heard in relation to a change of country for them to live in.

14. Notwithstanding these children have spent considerable time in Country G over their life, it must be recognised that the move of residence to Country G now will involve both experiencing considerable upheaval.  In order for the Court to again entertain an application for parenting orders, the father needs to satisfy the Court that there has been a change of relevant circumstances for the children since the hearing in September 2009.

15. In this application the father needs to establish that he has an arguable case based upon acceptable evidence.  In my opinion, the father has established that.  There are a number of significant changes which have been identified.  They are:

    a)Contrary to the finding of Justice Warnick, the mother did leave Australia and resided in Country G for 15 months following his orders;

    b)The mother has given birth to a child, A.  That circumstance was not contemplated by the mother or the Court at the time of the hearing in September 2009;

    c)M is now 12 years of age and is prepared to express his views about where he lives.  He is to start high school in 2012.  He has had in excess of two years since he saw the family consultant who relayed his views to the Court.  He has had two years of building a peer group and his friends are important to him.  He might reasonably be predicted to better understand the implications for him of moving to Country G and entering into a new schooling system at this time than he would have had some time in 2009.

16. In my view, those matters may convince a Court that the threshold, as referred to in Rice & Asplund (1979) FLC 90-725, has been crossed.

17. However, there is another practical consideration. By the time a hearing could be convened, the Court will have the benefit of further report in relation to the children’s views and the impact on the children of a change of residence to Country G.  That report will assist the Court in determining if there should be a further hearing.  Further, there may be an Independent Children’s Lawyer to assist the Court in this most difficult of cases.

18. Although not specifically addressed, it appears that the Court ought to consider the matters set out in section 60CC of the Family Law Act 1975 (Cth) (“the Act”) to the extent they touch on this case.

Relevant Law

1. The principles governing this case are set out in the Act. In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.

2. I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.

3. In relation to section 60CC(3) of the Act I note the following:

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The children have expressed views to each parent.  It seems probable they are alive to their parents’ sensitivities in relation to their views.  An independent assessment of the children’s views would be required if the Court was to give them any weight.  In this case, however, the significant change is that the children are expressing views.

The nature of the relationship of the child with: (i) each of the child’s parents;  and (ii) other persons (including any grandparent or other relative of the child)

1. I accept the children have a good and appropriate relationship with their parents and other significant persons.  No argument to the contrary has been put in this application.

The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

1. Both parents to this point, and to their great credit, have demonstrated a willingness and ability to encourage a close and continuing relationship with the other parent.

The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:  (i) either of his or her parents;  or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

1. The order about to be implemented requires a change of country for the children to live in and a change of schooling system.

2. This is a significant change from the week about parenting arrangement they have lived in during the whole of 2011.  That itself was a departure from the circumstances that they lived in during 2010 in which their mother lived in Country G.  Thus these children have been exposed to a number of very significant changes since the orders were made following a hearing in September 2009.

The capacity of:  (i) each of the child’s parents;  and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs

1. The capacity of each parent does not seem to be seriously challenged.  The mother raises concerns about the father’s ability to attend to the children’s health issues, such as keep them free from nits, but in other respects no serious challenge is made by either parent to the capacity of the other.

The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant

1. The maturity of the children has changed since September 2009 and particularly since they were last seen by the family consultant, upon whose views the Court clearly rested in the hearing that was conducted in September of 2009.

2. M is now a 12 year old and as such, subject to assessment of his maturity and other aspects of his personality and development, is entitled to have the Court consider seriously exactly what his views are in respect of where he lives and the time he spends with each of his parents.  His sister is now 9 years of age.  What she has to say will be considered by the Court but is unlikely to carry nearly the same weight as that which the Court would normally anticipate being able to give to the views of M.

The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. Each of the parents has, on the evidence before me, displayed an attitude to the children and to the responsibility of parenthood which, on the surface at least, seems acceptable.  Each of them has complaints about various aspect of behaviour of the other since the separation but nothing, in my view, which is likely to impede on the decision the Court has to make today.

Any other fact or circumstance

1. These children have grown used to globetrotting for the purpose of spending time with each of their parents.  They probably have a level of sophistication in terms of world travel which is unmatched by many of their peers.

2. They clearly enjoy spending time with each parent and even during 2010 the parents were able to arrange for the children to spend time with their mother in Country G and in Australia, but particularly in circumstances where international travel was involved, and there does not appear to be any real complaint about the way in which the parties were able to implement those arrangements.

3. One aspect of the decision that I am required to make is that prima facie if the orders sought by the husband were made, it would interfere with arrangements for the children to spend time with their mother over the Christmas break and of course orders should be made to ensure that is possible and takes place, particularly in circumstances where they have an opportunity to spend time with her in Country G.  Such an excursion will no doubt be of value in the assessment of their views in respect of where they might live in the future.

Conclusion

1. Having considered all those matters, I consider it is in the best interests of the children to prevent a change of country to Country G until the father’s initiating application can be heard.  In the meantime, there are a number of matters which the Court considers need to be attended to.

2. Subject to hearing argument, I propose to consider the appointment of an Independent Children’s Lawyer.  Such an appointment could be of great assistance to the Court, particularly in this matter, having regard to the age of the children and the potential for conflict between the parents about their residential country.

3. A child inclusive conference and memorandum could be obtained from a family consultant on relatively short notice.  This, itself, may be of assistance to the parties and to the Court in determining whether the suspension I propose to make should be continued following the release of such a report.  Neither of the children have had an opportunity to express views to an independent person. Each of the children have expressed their views to the parents and as I have said earlier, are no doubt very aware of the sensitivities each parent would have to the views as they are expressed.  An arrangement should be made in any event for the children to spend time with their mother in Country G over the Christmas period if that is her proposal.

4. Further, orders relating to the removal of the children from Australia should be made in order to avoid any unexpected removal of the children from Australia.

I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 28 November 2011.

Associate: 

Date:  12 March 2012