Cardaklija & Cardaklija - [2007] FMCAfam 16

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARPENTER & CARPENTER

[2007] FMCAfam 16

FAMILY LAW – Interim parenting orders – overnight time for 15 month old child – substantial and significant time-meaningful involvement and meaningful relationship.

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

Cowling v Cowling (1998) FLC 92-801
Goode v Goode [2006] FamCA1346

Applicant:

MS CARPENTER

Respondent:

MR CARPENTER

File Number:

SYM5952 of 2006

Judgment of:

Altobelli FM

Hearing date:

13 December 2006

Delivered at:

Sydney

Delivered on:

18 January 2007

REPRESENTATION

Counsel for the Applicant:

Mr Johnston

Solicitors for the Applicant:

Johnston Vaughan Solicitors

Solicitor Advocate for the Respondent:

Mr Brown

Solicitors for the Respondent:

Browns the Family Lawyers

ORDERS

The respondent father will spend time with the child M born in September 2005 as follow:
1.1Between the date of these orders and 8 March 2007:
a.From 9am to 6pm each Tuesday, Thursday and Saturday; and
b.At other or alternate times as agreed between the parties.
1.2From 9 March 2007 to 30 May 2007:
a.From 9am to 6pm each Tuesday and Saturday; and
b.From 6.30pm each Thursday to 12 noon on Friday; and
c.At such other or alternate times as agreed between the parties.
1.3From 1 June 2007 until the making of further orders:
a.From 6.30 pm each Monday to 6pm Tuesday; and
b.From 6.30pm each Thursday to 6pm each Friday; and
c.From 9.00 am to 6.30 pm each Sunday.
The child live with the mother at all other times.
The father shall collect M from the mother’s residence at the commencement of spending time with M, and then to return M to the mother’s residence at the conclusion of the said time.
The matter be adjourned to 5 July 2007 at 10am for a two day final hearing.
Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4.00pm on 21 June 2007. No further affidavits to be filed after that date without leave of this Court.
Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.
The parties send copies of all their court documents to the family report writer within 3 days of being requested to do so by the family report writer.
I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.
The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.
No later than two working days prior to hearing each party forward to my Associate a document setting out:
a.The…

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

Case: [2007] FMCAfam 16
Decision Date: 18 January 2007

CaseChat Overview and Summary

The case of Cardaklija & Cardaklija involved the determination of parenting arrangements for a child named M, born in September 2005. The matter was heard in the Family Court of Australia, where the primary concern was the allocation of parenting time between the child's mother and father. The mother and father had reached an agreement on some aspects of the parenting arrangement but required the court's decision on others. The court was tasked with deciding the specific times during which the father would have access to the child, as well as other related matters such as the location of the child during non-access periods and procedural requirements for future hearings.

The legal issues before the court encompassed the best interests of the child, which were to be determined in accordance with the provisions of the Family Law Act 1975. The court had to consider the wishes of the child, the child’s best interests, and the views of both parents. Furthermore, the court needed to establish a detailed schedule for the father's access to the child, taking into account the child’s age and developmental needs. Additionally, procedural matters such as the filing of affidavits, attendance at a family consultant’s sessions, and the payment of hearing fees were to be addressed.

The court deliberated on the evidence presented and the arguments made by both parties. It considered the proposed parenting arrangements and the implications for the child's welfare. The court determined that the proposed schedule for the father's access to the child was in the best interests of M, and it detailed the specific times and conditions under which the father would have contact with the child. The court also set out procedural directives to ensure the smooth running of future hearings and the preparation of a Family Report. The orders reflected a balanced approach that aimed to facilitate the child’s relationship with both parents while prioritising the child’s welfare.

The court issued comprehensive orders detailing the parenting arrangements and procedural requirements. The father was granted specific times for access to the child, with the remainder of the time allocated to the mother. The court also outlined the procedural steps that needed to be followed before the final hearing, including the preparation of a Family Report and the exchange of affidavits. The final orders were designed to provide clarity and structure to the parenting arrangements, with the aim of supporting the child's ongoing relationship with both parents.

Orders

Orders of the court

The respondent father will spend time with the child M born in September 2005 as follow:

1.1 Between the date of these orders and 8 March 2007:

a. From 9am to 6pm each Tuesday, Thursday and Saturday; and

b. At other or alternate times as agreed between the parties.

1.2 From 9 March 2007 to 30 May 2007:

a. From 9am to 6pm each Tuesday and Saturday; and

b. From 6.30pm each Thursday to 12 noon on Friday; and

c. At such other or alternate times as agreed between the parties.

1.3 From 1 June 2007 until the making of further orders:

a. From 6.30 pm each Monday to 6pm Tuesday; and

b. From 6.30pm each Thursday to 6pm each Friday; and

c. From 9.00 am to 6.30 pm each Sunday.

The child live with the mother at all other times.

The father shall collect M from the mother’s residence at the commencement of spending time with M, and then to return M to the mother’s residence at the conclusion of the said time.

The matter be adjourned to 5 July 2007 at 10am for a two day final hearing.

Each party file and serve all affidavits on which they intend to rely at hearing by no later than 4.00pm on 21 June 2007. No further affidavits to be filed after that date without leave of this Court.

Pursuant to section 62G(2) of the Family Law Act 1975 the parties and the child of the relationship attend upon a family consultant nominated by the Dispute Resolution Coordinator of this Court on a date and at times to be advised for the purposes of the preparation of a Family Report addressing the issues identified in section 60CC of the Act.

The parties send copies of all their court documents to the family report writer within 3 days of being requested to do so by the family report writer.

I DIRECT the legal representatives for both parties or the parties themselves to confirm with the report writer no later than ten (10) days prior to the scheduled interviews that the interviews will proceed on the dates allocated.

The Applicant pay the hearing fee or obtain a waiver of that fee at least 14 days prior to the hearing date.

10.

No later than two working days prior to hearing each party forward to my Associate a document setting out:

a. The affidavits on which the party will rely at hearing;

b. The orders sought at hearing.

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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