CAO & CAO - [2018] FCCA 1816

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAO & CAO

[2018] FCCA 1816

Catchwords:
FAMILY LAW – Interim Parenting – risk of harm assessment.

Legislation:

Family Law Act 1975, ss.60B, 60CC, 61C, 61DA

Cases cited:

Keats & Keats [2016] FamCAFC 156

Applicant:

MR CAO

Respondent:

MS CAO

File Number:

PAC 3226 of 2016

Judgment of:

Judge Obradovic

Hearing date:

5 June 2018

Date of Last Submission:

5 June 2018

Delivered at:

Parramatta

Delivered on:

14 June 2018

REPRESENTATION

Counsel for the Applicant:

Ms Coulton

Solicitors for the Applicant:

Vizzone Ruggero Twigg Lawyers

Counsel for the Respondent:

Mr Adams

Solicitors for the Respondent:	Merit Lawyers
Counsel for the Independent Children's Lawyer:	Ms Soliman
Solicitors for the Independent Children's Lawyer:	Legal Aid New South Wales

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The father is to return the children [X] born 2010 and [Y] born 2015 to the mother’s care at the conclusion of school today.
Time in accordance with the orders made on 12 August 2016 is to recommence as follows:
(a)As to the time on the alternate Tuesdays from 19 June 2018; and
(b)As to the time on the alternate weekends from Friday 22 June 2018.
Pursuant to section 68B of the Family Law Act 1975 the mother is restrained by injunction from:
(a)Bringing the children into any contact with Mr C;
(b)Consuming any alcohol 12 hours prior to the children coming into her care and during any periods of time the children are in her care; and
(c)Physically disciplining the children.
Pursuant to section 68B of the Family Law Act 1975 both parents are restrained by injunction from taking the children or either of them for any therapy or counselling or similar treatment unless by order of the Court.
Pursuant to section 68B of the Family Law Act 1975 the father is restrained by injunction from permitting, allowing or encouraging the paternal grandmother from having any contact with the child [X] during the days on which the child attends school or is otherwise living with the mother pursuant to these orders.

THE COURT FURTHER ORDERS THAT:

Dismiss the Application in a Case filed 9 May 2018.
Vacate the listing of the matter at 9am on 30 July 2018 and 9.30am on 20 August 2018.
List the matter for directions at 11.30am on 20 August 2018.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3226 of 2016

MR CAO

Applicant

And

MS CAO

Respondent

REASONS FOR JUDGMENT

On 5 June 2018 the Court heard the father’s urgent interim application, in essence, for a discharge of interim orders made by Hannam J in August 2016. The matter itself has a long history, and it is almost at the tail end of the proceedings with the preparation of the expert’s report well underway and a final hearing in the foreseeable future. The parties have been in high…

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.

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Details

AGLC: Cao and Cao [2018] FCCA 1816
Case: [2018] FCCA 1816
Decision Date: 14 June 2018

CaseChat Overview and Summary

In the matter of *CAO & CAO*, the Family Court of Australia, presided over by Obradovic J, considered an application concerning parenting arrangements for two children. The dispute centred on the parents' differing views regarding the children's future residence and the extent of each parent's involvement in their lives.

The primary legal issues before the Court were: (1) whether it was in the best interests of the children to make final orders for their residence with one parent; and (2) what specific orders regarding time spent with each parent, decision-making responsibilities, and other aspects of the children's welfare were appropriate in the circumstances. The Court was required to apply the principles enshrined in the *Family Law Act 1975* (Cth), particularly the paramountcy of the children's best interests and the consideration of factors such as the children's relationship with each parent, their developmental needs, and the capacity of each parent to provide for them.

Obradovic J engaged in a detailed assessment of the evidence presented by both parties, including their respective parenting capacities, the children's expressed wishes (given their age and maturity), and the potential impact of any proposed orders on the children's well-being. The Court emphasised the importance of maintaining a meaningful relationship between the children and both parents, while also ensuring the children's safety and stability. The Judge carefully weighed the competing proposals, considering the practicalities of each arrangement and the potential for conflict or cooperation between the parents. The Court's reasoning focused on identifying the order that would best promote the children's physical, psychological, and emotional development.

The Court ultimately made final orders regarding the children's residence and the time each parent would spend with them, along with specific provisions for decision-making and communication.

Orders