Jespersen and Frankel - [2020] FamCA 239

FAMILY COURT OF AUSTRALIA

JESPERSEN & FRANKEL

[2020] FamCA 239

FAMILY LAW – JURISDICTION – Where the children are habitually resident in the United States of America – Where there is no jurisdiction for the Court to hear the dispute – Where there are Family Court proceedings in the United States of America – Application dismissed – All outstanding Applications dismissed.

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-Operation in respect of Parental Responsibility and measures for the Protection of Children signed at The Hague on 19 October 1996.
Family Law Act 1975 (Cth) ss 13AA 69E, 111B, 111CD.

LK v Director-General, Department of Community Services (2009) 237 CLR 582.

APPLICANT:

Mr Jespersen

RESPONDENT:

Ms Frankel

FILE NUMBER:

SYC

7942

2017

DATE DELIVERED:

15 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

IN CHAMBERS:

15 April 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Tabbernor

SOLICITOR FOR THE APPLICANT:

Holmes Donnelly & Co Solicitors

THE RESPONDENT:

In person

Orders

IT IS ORDERED

That the Initiating Application of the father filed 29 November 2017, seeking parenting orders in relation to the children X born … 2012 and Y born … 2014, is dismissed.
That the Application in a Case filed by the father on 3 February 2020, is dismissed.
That all other outstanding applications are dismissed and future hearing dates are vacated.

THE COURT NOTES

That the Family Court of Australia may not, by virtue of the operation s111CD(1)(e) of the Family Law Act 1975 (Cth), determine issues relating to the parenting of the subject children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jespersen & Frankel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7942 of 2017

Mr Jespersen

Applicant

And

Ms Frankel

Respondent

REASONS FOR JUDGMENT

Mr Jespersen (“the father”) and Ms Frankel (“the mother”) are the separated parents of X aged almost eight and Y aged five.
The father lives in Australia. The mother and the children live in State B in the United States of America (“USA”).
The father, by an Application in a Case filed 3 February 2020, seeks orders relating to his spending time with the children in State B, electronic communication, orders restraining the mother from blocking his mobile phone number and non-denigration orders. In support of that application, the father relies on an affidavit sworn by him on 31 January 2020.
The mother by a Response to an Application in a Case filed on 10 March…

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 Jespersen and Frankel

Details

AGLC: Jespersen and Frankel [2020] FamCA 239
Case: [2020] FamCA 239
Decision Date: 15 April 2020

CaseChat Overview and Summary

The parties to this proceeding were the father and the mother, concerning parenting orders for their two children. The father had filed an Initiating Application on 29 November 2017, and a further Application in a Case on 3 February 2020. The matter came before Rees J in the Family Court of Australia.

The primary legal issue before the Court was whether it had the jurisdiction to make parenting orders in relation to the subject children, given the operation of section 111CD(1)(e) of the *Family Law Act 1975* (Cth). This section concerns the circumstances in which the Court may make orders in relation to children who are not Australian citizens and are not ordinarily resident in Australia.

Rees J determined that the Court lacked the jurisdiction to make the orders sought by the father. The Court noted that, by virtue of section 111CD(1)(e) of the *Family Law Act 1975* (Cth), it was precluded from determining issues relating to the parenting of the subject children. Consequently, the father's applications were dismissed, as were all other outstanding applications, and future hearing dates were vacated.

Orders

Orders of the court

IT IS ORDERED

That the Initiating Application of the father filed 29 November 2017, seeking parenting orders in relation to the children X born … 2012 and Y born … 2014, is dismissed.

That the Application in a Case filed by the father on 3 February 2020, is dismissed.

That all other outstanding applications are dismissed and future hearing dates are vacated.

THE COURT NOTES

That the Family Court of Australia may not, by virtue of the operation s111CD(1)(e) of the Family Law Act 1975 (Cth), determine issues relating to the parenting of the subject children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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