Carnegie and Casey and Anor - [2011] FamCA 748

FAMILY COURT OF AUSTRALIA

CARNEGIE & CASEY & ANOR

[2011] FamCA 748

FAMILY LAW – CHILDREN – sole parental responsibility – live with – spend time with

Family Law Act 1975 (Cth)

APPLICANT:

Ms Carnegie

1st RESPONDENT:

Mr Casey

2nd RESPONDENT:

Ms B

FILE NUMBER:

PAC

1958

2011

DATE DELIVERED:

7 June 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Loughnan J

HEARING DATE:

6 June 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Greenaway

SOLICITOR FOR THE APPLICANT:

Conditsis & Associates

COUNSEL FOR THE 1ST RESPONDENT:

Mr Kenny

SOLICITOR FOR THE 1ST RESPONDENT:	Longman Hill Solicitors
SOLICITOR FOR THE 2ND RESPONDENT:	Campbell Paton & Taylor

Orders

That, by consent, the R Town Local Court Orders made 7 April 2011 are vacated.

That the solicitor for the applicant notify the Legal Aid Commission within 24 hours of the below orders and that the parties provide copies to the Legal Aid Commission of all relevant applications, affidavits and other documents on which they seek to rely within 7 days from today’s date.

That these proceedings are adjourned to 10am 8 August 2011for consideration of:

a)an appointment of a single expert or single experts in the proceedings; and
b)for consideration of any other interim issue of which each of the parties and the Independent Children’s Lawyer is given adequate notice.

That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

THAT PENDING FURTHER ORDER:

That Ms Carnegie have sole parenting responsibility for the child C born …, 2004 (‘the child’).

That the child live with Ms Carnegie and Ms Carnegie have the day to day care and responsibility for the welfare of the child.

That the child spend time with the 2^nd Respondent Ms B at times as agreed between Ms Carnegie and Ms B.

That the child spend time with the 1^st Respondent Mr Cary at times as agreed between Ms Carnegie and Mr Casey, provided that during all periods that the child spend time with the 1^st Respondent, be at a contact centre or supervised by a person acceptable to Ms Carnegie and the Father.

That the 1^st Respondent have telephone contact with the child once per week at times as agreed between Ms Carnegie and the 1^st Respondent, and failing agreement on each Sunday between 5pm and 6pm and for that purpose the 1^st Respondent provide to Ms Carnegie a telephone contact number and Ms Carnegie will cause a telephone call to be made to implement the telephone contact.

That Ms Carnegie do all things and give all necessary authorizations to make available to the 1^st and 2^nd Respondents reports on the child’s education health sporting an social activities, as and when any reports are available.

That an Independent Children’s Lawyer be appointed for the representation of the child and the Legal…

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 Carnegie and Casey and Anor

Details

AGLC: Carnegie and Casey and Anor [2011] FamCA 748
Case: [2011] FamCA 748
Decision Date: 7 June 2011

CaseChat Overview and Summary

This matter concerned proceedings between Ms Carnegie and Mr Casey and Ms B, concerning parenting orders for a child. The proceedings were before Loughnan J.

The court was required to determine interim parenting orders pending further consideration of the matter. The specific issues before the court included the appointment of a single expert or experts, and any other interim issues of which parties and the Independent Children’s Lawyer were given adequate notice.

The court made orders by consent, vacating previous Local Court orders. Pending further order, Ms Carnegie was granted sole parenting responsibility for the child, with the child to live with her and have day-to-day care. The child was to spend time with Ms B as agreed between the parties. Time with Mr Casey was to be at times agreed between Ms Carnegie and Mr Casey, but only at a contact centre or supervised by a person acceptable to Ms Carnegie and Mr Casey. Telephone contact for Mr Casey was to be once per week, at an agreed time or failing agreement, on Sundays between 5pm and 6pm. Ms Carnegie was to provide reports on the child’s activities to the respondents. An Independent Children’s Lawyer was to be appointed, with the Legal Aid Commission of NSW requested to arrange representation. The parties were also ordered to notify the Legal Aid Commission and provide relevant documents within seven days.

Orders

Orders of the court

That, by consent, the R Town Local Court Orders made 7 April 2011 are vacated.

That the solicitor for the applicant notify the Legal Aid Commission within 24 hours of the below orders and that the parties provide copies to the Legal Aid Commission of all relevant applications, affidavits and other documents on which they seek to rely within 7 days from today’s date.

That these proceedings are adjourned to 10am 8 August 2011for consideration of:

a) an appointment of a single expert or single experts in the proceedings; and

b) for consideration of any other interim issue of which each of the parties and the Independent Children’s Lawyer is given adequate notice.

That the parties shall note the obligations created by the Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Fact Sheet.

THAT PENDING FURTHER ORDER:

That Ms Carnegie have sole parenting responsibility for the child C born …, 2004 (‘the child’).

That the child live with Ms Carnegie and Ms Carnegie have the day to day care and responsibility for the welfare of the child.

That the child spend time with the 2nd Respondent Ms B at times as agreed between Ms Carnegie and Ms B.

That the child spend time with the 1st Respondent Mr Cary at times as agreed between Ms Carnegie and Mr Casey, provided that during all periods that the child spend time with the 1st Respondent, be at a contact centre or supervised by a person acceptable to Ms Carnegie and the Father.

That the 1st Respondent have telephone contact with the child once per week at times as agreed between Ms Carnegie and the 1st Respondent, and failing agreement on each Sunday between 5pm and 6pm and for that purpose the 1st Respondent provide to Ms Carnegie a telephone contact number and Ms Carnegie will cause a telephone call to be made to implement the telephone contact.

10.

That Ms Carnegie do all things and give all necessary authorizations to make available to the 1st and 2nd Respondents reports on the child’s education health sporting an social activities, as and when any reports are available.

11.

That an Independent Children’s Lawyer be appointed for the representation of the child and the Legal Aid Commission of NSW be requested to arrange the representation.

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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