FAMILY COURT OF AUSTRALIA
| HEPBURN & NOBLE | [2010] FamCAFC 111 |
| FAMILY LAW - APPEAL – CHILDREN – relocation – whether the Federal Magistrate erred in finding that the mother would be “extremely unhappy, bitter and resentful” if relocation was not permitted and that this would impact on the mother’s parenting capacity and on the children – whether these findings were inconsistent with the evidence – whether the Federal Magistrate failed to provide adequate reasons for concluding that the advantages of relocation outweighed the advantages of the children not relocating, or failed to provide adequate reasons generally – whether the Federal Magistrate erred in finding that equal time was not in the children’s best interests – whether the Federal Magistrate failed to give “proper” consideration to the children spending substantial and significant time with both parents – whether the Federal Magistrate erred in “preferring” the interests of the mother’s new partner over those of the father and the children – appeal dismissed. FAMILY LAW - APPEAL – CHILDREN – relocation – discussion of whether the application of the principles in A v A: Relocation Approach (2000) FLC 93-035 is still appropriate in light of the amendments introduced by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) in 2006. FAMILY LAW - APPEAL - COSTS – where the appeal was wholly unsuccessful – appellant ordered to pay the respondent’s costs. |
| Family Law Act 1975 (Cth) s 60CC & s 65DAA Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| A v A: Relocation Approach (2000) FLC 93-035 Bennett and Bennett (1991) FLC 92-191 McCall & Clark (2009) FLC 93-405 MRR v GR [2010] HCA 4 Sealey & Archer [2008] FamCAFC 142 Starr & Duggan [2009] FamCAFC 115 Taylor and Barker (2007) FLC 93-345 Wen & Thom [2010] FamCAFC 81 |
| APPELLANT: | Mr Hepburn |
| RESPONDENT: | Ms Noble |
| FILE NUMBER: | SYC | 7564 | of | 2007 |
| APPEAL NUMBER: | EA | 143 | of | 2009 |
| DATE DELIVERED: | 21 June 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman, Strickland and Crisford JJ |
| HEARING DATE: | 5 February 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 30 October 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 1143 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Galloway |
| SOLICITOR FOR THE APPELLANT: | Wiltshire Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Rees SC |
| SOLICITOR FOR THE RESPONDENT: | Rossi Simicic |
Orders
The Appeal is dismissed.
The appellant pay the costs of the respondent of and incidental to this appeal as agreed and in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Hepburn & Noble is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 143 of 2009
File Number: SYC 7564 of 2007
| Mr Hepburn |
Appellant
And
| Ms Noble |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 27 November 2009 the father appeals against parenting orders made by Federal Magistrate Brewster on 30 October 2009 with…
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- Hepburn & Noble [2010] FamCAFC 111
- Case
- [2010] FamCAFC 111
- Decision Date
CaseChat Overview and Summary
The court dismissed the appeal and found that the Federal Magistrate's findings were supported by the evidence and the relevant principles in family law. The court noted that the Federal Magistrate had carefully considered the best interests of the children, taking into account the mother's emotional state and the potential impact on the children's relationship with the father. The court held that the Federal Magistrate did not err in finding that equal shared parenting was not in the children's best interests, and that the Magistrate had given proper consideration to the children spending substantial and significant time with both parents. The court also found that the Magistrate had not erred in preferring the interests of the mother's new partner over those of the father and the children.
The appeal was dismissed and the appellant was ordered to pay the costs of the respondent of and incidental to this appeal as agreed and in default of agreement as assessed. The court emphasised that the appeal was wholly unsuccessful and that the appellant had not succeeded in any of the grounds of appeal. The court held that the Federal Magistrate's decision was based on a proper application of the relevant principles in family law and that the appeal should be dismissed. The court also noted that the relocation of the children was in their best interests and that the father's appeal was not in their best interests.
Orders
Orders of the court
1.
The Appeal is dismissed.
2.
The appellant pay the costs of the respondent of and incidental to this appeal as agreed and in default of agreement as assessed.
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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