Carter and Carter - [2008] FamCA 822

FAMILY COURT OF AUSTRALIA

CARTER & CARTER

[2008] FamCA 822

FAMILY LAW – CHILDREN – Interim Parenting Circumstances

Family Law Act 1975 (Cth)

APPLICANT:

MR CARTER

RESPONDENT:

MS CARTER

FILE NUMBER:

MLF

3022

2006

DATE DELIVERED:

3 OCTOBER 2008

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

MELBOURNE

JUDGMENT OF:

YOUNG J

HEARING DATE:

3 OCTOBER 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR BREWER

SOLICITOR FOR THE APPLICANT:

BAYSIDE SOLICITORS

COUNSEL FOR THE RESPONDENT:

MR SCHETZER

SOLICITOR FOR THE RESPONDENT:

SCHETZER CONSTANTINO

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS DOWLER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

DANIELLE WEBB LAWYER

ORDERS

IT IS ORDERED:

THAT paragraph 4 of the Orders pronounced 24 June 2008 be discharged.
THAT the wife and the children of the marriage H born …August, 1996, C born …July 1998, and L born … August 2000 continue to attend, as and when directed, upon M Hospital for the purposes of family and therapeutic counselling and participation in the parenting orders program.
IT IS REQUESTED that the counsellor engaged with the wife and children at M liaise and co-operate with the Independent Children’s Lawyer and, if applicable, B Children’s Contact Service for the purposes of arranging and instigating, at a future date to be determined, a supervised two (2) hour period(s) of time to be spent between the three children and the husband.
THAT this matter be referred to Registrar Kaur for case management and for that purpose a telephone conference be established, at the convenience of the Registrar, with all legal practitioners in or about the last week of November 2008.
THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties and the Registrar.
THAT the Independent Children’s Lawyer be authorised to provide to M true copies of the various reports that have been prepared and presented to the Court in these proceedings from:
(a)         Mr N;
(b)         Dr R;
(c)         Dr K;
all such reports being provided for the purposes of background history and professional opinion that may be of assistance in the further management and progress of the issues in this case.
Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband and Independent Children’s Lawyer and solicitor appearing as counsel for the wife.

IT IS NOTED

A.THAT the Independent Children’s Lawyer did raise with the Court the issue of any future drug screen tests to which the husband should submit but, on balance, and because of the husband’s assurance through his counsel that he is no longer participating…

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 Carter and Carter

Details

AGLC: Carter and Carter [2008] FamCA 822
Case: [2008] FamCA 822
Decision Date: 3 October 2008

CaseChat Overview and Summary

In the Family Court of Australia, Young J considered an application by the wife concerning parenting orders. The dispute involved the husband's contact with his three children, H, C, and L, and the wife's attendance at family and therapeutic counselling. The court also addressed the role of the Independent Children's Lawyer and the provision of various reports to assist in the case management.

The primary legal issues before the court were the appropriate arrangements for supervised contact between the husband and the children, the continuation of mandatory counselling for the wife and children, and the dissemination of expert reports to relevant parties and professionals. The court was required to determine how best to facilitate potential future contact while ensuring the children's welfare and therapeutic needs were met.

Young J reasoned that discharging paragraph 4 of the previous orders was necessary to allow for the careful arrangement of supervised contact. The court ordered that the wife and children continue attending counselling at M Hospital and requested that the counsellor liaise with the Independent Children’s Lawyer and B Children’s Contact Service to arrange supervised time between the children and the husband. The matter was referred to Registrar Kaur for case management, with a telephone conference to be scheduled. The court also authorised the Independent Children’s Lawyer to provide reports from Mr N, Dr R, and Dr K to M Hospital for background and professional assistance. Furthermore, the court certified that the matter reasonably required the attendance of counsel for the husband and the wife, and a solicitor appearing as counsel for the wife.

Orders

Orders of the court

IT IS ORDERED:

THAT paragraph 4 of the Orders pronounced 24 June 2008 be discharged.

THAT the wife and the children of the marriage H born …August, 1996, C born …July 1998, and L born … August 2000 continue to attend, as and when directed, upon M Hospital for the purposes of family and therapeutic counselling and participation in the parenting orders program.

IT IS REQUESTED that the counsellor engaged with the wife and children at M liaise and co-operate with the Independent Children’s Lawyer and, if applicable, B Children’s Contact Service for the purposes of arranging and instigating, at a future date to be determined, a supervised two (2) hour period(s) of time to be spent between the three children and the husband.

THAT this matter be referred to Registrar Kaur for case management and for that purpose a telephone conference be established, at the convenience of the Registrar, with all legal practitioners in or about the last week of November 2008.

THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties and the Registrar.

THAT the Independent Children’s Lawyer be authorised to provide to M true copies of the various reports that have been prepared and presented to the Court in these proceedings from:

(a) Mr N;

(b) Dr R;

all such reports being provided for the purposes of background history and professional opinion that may be of assistance in the further management and progress of the issues in this case.

Pursuant to s 62B and s 65DA, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled Fact Sheet a copy of which is annexed to these orders.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for the husband and Independent Children’s Lawyer and solicitor appearing as counsel for the wife.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.