Carver and McCaffrey - [2017] FCCA 2043

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARVER & MCCAFFREY

[2017] FCCA 2043

Catchwords:
FAMILY LAW – Contravention proceedings – where contravention conceded – whether reasonable excuse established – whether orders to be varied.

Legislation:

Family Law Act 1975, ss.65N, 70NAA, 70NAC, 70NAD, 70NAE, 70NAF, 70NBA, 70NDA, 70NEA, 70NEB, 70NEC, 70NFA

Cases cited:

Deakin & Howe [2016] FCCA 2605

Applicant:

MR CARVER

Respondent:

MS MCCAFFREY

File Number:

WOC 465 of 2014

Judgment of:

Judge Altobelli

Hearing date:

8 August 2017

Date of Last Submission:

8 August 2017

Delivered at:

Wollongong

Delivered on:

22 September 2017

REPRESENTATION

Solicitors for the Applicant:

Adams & Partners Lawyers

Solicitors for the Respondent:

Mcnamara & Associates

ORDERS

MS MCCAFFREY having this day been found by the Federal Circuit Court of Australia at Wollongong to have contravened without reasonable excuse an order made by this court on the 23 April 2015 is hereby ordered to enter into this bond pursuant to the provisions of s70NFE of the Family Law Act 1975 and upon the conditions set out below:
(a)Strictly adhere to the obligations in respect of the parenting orders currently operative.
(b)For a period of 12 months be of good behaviour.
Within 6 months, the Respondent complete the Parenting Orders Program or an equivalent post separation parenting program.
Order 4 of the Consent Orders made 23 April 2015 is vacated.
The child X, born (omitted) 2013 shall spend time with the father as follows:
(a)Until the child turns 4:
(i)Each alternate Sunday from 9.00am until 5.00pm;
(ii)At all other times as agreed between the parties.
(b)Upon the child turning 4 as follows:
(i)Each alternate weekend from 10.00am Saturday until 10.00am Sunday;
(ii)From 10.00am Boxing Day until 10.00am on 27 December 2017;
(iii)From 3.30pm Easter Saturday until 3.30pm Easter Day in 2018;
(iv)The Father’s time shall be suspended on the Mother’s Day weekend and the child shall spend time with the Father on the following weekend;
(v)At all other times as agreed between the parties.
(c)Upon the child turning 5 and thereafter:
(i)Each alternate weekend from 10.00am Saturday until 5.00pm Sunday.
(ii)For Father’s Day and Mother’s Day weekends as follows:
A. The child shall spend the Father’s Day weekend with the Father (in accordance with these Orders) and the following weekend shall be suspended.
B. The child shall spend the Mother’s Day weekend with the Mother and the child shall spend time with the Father on the following weekend, in accordance with these Orders.
(iii)From 10.00am Boxing Day until 5.00pm 27 December in 2018 and each year ending in an even number.
(iv)From 5.00pm Christmas Eve until 10.00am Boxing Day in each year ending in an odd number.
(v)From 3.30pm Easter Thursday until 3.30pm Easter Saturday in each year ending in an odd number.
(vi)From 3.30pm Easter Saturday until 3.30pm Easter Monday in each year ending in an even number.
(vii)At all other times as agreed between the parties.
From the first contact weekend in May 2019:
(a)From after school on Friday to 5.00pm on Sunday each alternate…

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 Carver and McCaffrey

Details

AGLC: Carver and McCaffrey [2017] FCCA 2043
Case: [2017] FCCA 2043
Decision Date: 22 September 2017

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Altobelli considered proceedings between Ms. McCaffrey and Mr. Carver. The dispute concerned Ms. McCaffrey's contravention of parenting orders previously made by the court on 23 April 2015.

The court was required to determine whether Ms. McCaffrey had contravened the existing parenting orders without reasonable excuse. Additionally, the court needed to consider the appropriate orders to be made in light of this contravention, including the terms of any bond, the completion of a parenting program, and the specific arrangements for the child X's time with the father.

Judge Altobelli found that Ms. McCaffrey had contravened the parenting orders without reasonable excuse. Consequently, Ms. McCaffrey was ordered to enter into a bond for 12 months, requiring her to strictly adhere to the operative parenting orders and to be of good behaviour. Ms. McCaffrey was also ordered to complete a parenting program within six months. Order 4 of the original consent orders was vacated, and the court then set out detailed new parenting arrangements for the child X, specifying the time the child would spend with the father, with provisions that evolved as the child aged and included arrangements for school holidays and public holidays.

Orders

Orders of the court

MS MCCAFFREY having this day been found by the Federal Circuit Court of Australia at Wollongong to have contravened without reasonable excuse an order made by this court on the 23 April 2015 is hereby ordered to enter into this bond pursuant to the provisions of s70NFE of the Family Law Act 1975 and upon the conditions set out below:

(a) Strictly adhere to the obligations in respect of the parenting orders currently operative.

(b) For a period of 12 months be of good behaviour.

Within 6 months, the Respondent complete the Parenting Orders Program or an equivalent post separation parenting program.

Order 4 of the Consent Orders made 23 April 2015 is vacated.

The child X, born (omitted) 2013 shall spend time with the father as follows:

(a) Until the child turns 4:

(i) Each alternate Sunday from 9.00am until 5.00pm;

(ii) At all other times as agreed between the parties.

(b) Upon the child turning 4 as follows:

(i) Each alternate weekend from 10.00am Saturday until 10.00am Sunday;

(ii) From 10.00am Boxing Day until 10.00am on 27 December 2017;

(iii) From 3.30pm Easter Saturday until 3.30pm Easter Day in 2018;

(iv) The Father’s time shall be suspended on the Mother’s Day weekend and the child shall spend time with the Father on the following weekend;

(v) At all other times as agreed between the parties.

(i) Each alternate weekend from 10.00am Saturday until 5.00pm Sunday.

(ii) For Father’s Day and Mother’s Day weekends as follows:

A. The child shall spend the Father’s Day weekend with the Father (in accordance with these Orders) and the following weekend shall be suspended.

B. The child shall spend the Mother’s Day weekend with the Mother and the child shall spend time with the Father on the following weekend, in accordance with these Orders.

(iii) From 10.00am Boxing Day until 5.00pm 27 December in 2018 and each year ending in an even number.

(iv) From 5.00pm Christmas Eve until 10.00am Boxing Day in each year ending in an odd number.

(v) From 3.30pm Easter Thursday until 3.30pm Easter Saturday in each year ending in an odd number.

(vi) From 3.30pm Easter Saturday until 3.30pm Easter Monday in each year ending in an even number.

(vii) At all other times as agreed between the parties.

From the first contact weekend in May 2019:

(a) From after school on Friday to 5.00pm on Sunday each alternate weekend;

(b) The child shall spend one week of the school holiday period at the end of Term 1, Term 2 and Term 3.

(d) The child’s weekend time with the Father in accordance with these Orders shall be suspended during the school holiday period and shall recommence on the first weekend of each school term.

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.