Hepburn & Noble

Case [2010] FamCAFC 111


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

  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.

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

  1. 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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AGLC
Hepburn & Noble [2010] FamCAFC 111
Case
[2010] FamCAFC 111
Decision Date

CaseChat Overview and Summary

In this case, the appellant, the father, appealed against the decision of a Federal Magistrate which allowed the mother to relocate with the children to another state. The father contested the relocation on the basis that it would negatively impact the children's relationship with him and that equal shared parenting was in their best interests. The court was required to determine whether the Federal Magistrate erred in finding that the mother would be extremely unhappy, bitter and resentful if the relocation was not permitted, and whether this finding was inconsistent with the evidence provided. The court also needed to consider whether the Federal Magistrate provided adequate reasons for concluding that the advantages of relocation outweighed the disadvantages, and whether the Magistrate failed to give proper consideration to the children spending substantial and significant time with both parents.

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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