Caffell and Caffell - [2011] FMCAfam 1190

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CAFFELL & CAFFELL [2011] FMCAfam 1190

FAMILY LAW – Parenting – dispute about the father’s time with a child aged 8 – issue the father’s alcohol consumption.

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Byrne & Smith & Anor (No.2)[2009] FMCAfam 1115

Mazorski & Albright (2007) 37 FamLR 518

Applicant: MS CAFFELL

Respondent: MR CAFFELL

File Number: NCC 1703 of 2009

Judgment of: Terry FM

Hearing dates: 26 August 2010, 2 September 2010 and 15 June 2011

Date of Last Submission: 15 June 2011

Delivered at: Newcastle

Delivered on: 25 November 2011
REPRESENTATION

Counsel for the Applicant: Mr Duane

Solicitors for the Applicant: Paton Hooke

Counsel for the Respondent:

(26 August and 1 September 2010)
Mr Loomes

Solicitor-Advocate for the Respondent (15 June 2011): Ms Reynolds

Solicitors for the Respondent: GWM Lawyers

ORDERS

That all previous parenting orders concerning the child [X] born [in] 2003 are discharged.
That the parents have equal shared parental responsibility for the child.
That the child live with the mother.
That the father spend time with the child:
(a)each alternate Sunday from 10.00am to 4.00pm;
(b)at such additional or alternate times as may be agreed between the parties.
That the father’s time pursuant to Order (4) is suspended for half of the Christmas school holidays each year, being the first half in 2011 and each alternate year thereafter and the second half in 2012 and each alternate year thereafter.
That for the purposes of order (4) unless otherwise agreed between the parties the mother shall deliver the child to the father at McDonalds [omitted] at the commencement of the time and the father shall return the child to the mother at McDonalds [omitted] at the conclusion of the time.
That the father is restrained and an injunction is granted restraining him from consuming alcohol while the child is in his care or for 24 hours prior to the child coming into his care.
That the father may have reasonable telephone communication with the child.
That each party shall ensure that the other is kept informed of any medical problems or illnesses suffered by the child whilst in that party’s care and shall notify the other as soon as reasonably practicable upon the happening of any of the following:
(a)the child becoming seriously ill;
(b)the child being hospitalised;
(c)the child being seriously injured.
That each party must inform the other of any change of particulars of that party’s residential address, landline telephone number and mobile telephone number within 24 hours of any such change occurring.
That each party shall be entitled to obtain from the child’s school copies of school reports, notices relating to pupils, school letters, invitations to any cultural events, carnivals, sporting or social functions and any other notices directed to or normally provided to parents of children attending such school and each party shall be entitled to attend events at the school normally attended by parents.
That unless otherwise agreed between the parties the child’s residence…

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 Caffell and Caffell

Details

AGLC: Caffell and Caffell [2011] FMCAfam 1190
Case: [2011] FMCAfam 1190
Decision Date

CaseChat Overview and Summary

In Caffell v Caffell, the Federal Magistrates Court was required to determine the amount of time an 8-year-old child should spend with her father. The court needed to consider the parents' proposals, the child's best interests, and the potential risks to the child from the father's alcohol consumption. The primary consideration was the benefit to the child of having a meaningful relationship with both parents, and the need to protect the child from harm. The court considered the father's alcohol consumption history, his reliability in providing information about his drinking, and the risk it posed to the child. The court decided that the child should spend time with the father for six hours on alternate Sundays, and at such additional or alternate times as may be agreed between the parties. The court also ordered that the father must not consume alcohol while the child is in his care or for 24 hours prior to the child coming into his care.

The final orders of the court were that all previous parenting orders concerning the child were discharged, the parents have equal shared parental responsibility for the child, the child lives with the mother, and the father spends time with the child on alternate Sundays for six hours and at such additional or alternate times as may be agreed between the parties. The father is also restrained and an injunction is granted restraining him from consuming alcohol while the child is in his care or for 24 hours prior to the child coming into his care.

Orders