Chapman and Carrington - [2008] FamCA 550

FAMILY COURT OF AUSTRALIA

CHAPMAN & CARRINGTON

[2008] FamCA 550

FAMILY LAW – CHILDREN - Best interests – whom with a child lives

Family Law Act 1975 (Cth)

APPLICANT:

Mr Chapman

RESPONDENT:

Ms Carrington

INDEPENDENT CHILDREN’S LAWYER:

Ms Nikitin

FILE NUMBER:

SYF

2075

1998

DATE DELIVERED:

11 July 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

30 June to 2 July 2008 (final stage)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Falloon

SOLICITOR FOR THE APPLICANT:

James Soothill & Associates

COUNSEL FOR THE RESPONDENT:

Mr Livingston

SOLICITOR FOR THE RESPONDENT:

Alidenes Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Givney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission

Orders

All previous parenting orders be discharged.
The mother and father have equal shared parental responsibility for the child born … July 1995 (“the child”).
The child live with the mother.
The child have time with the father as follows:
4.1.During school terms from after school Thursday to before school Monday each alternate week.
4.2.One half of each school holiday period. The father shall have the first half of each period in odd numbered years and the second half in even numbered years unless otherwise agreed between the parties.
4.3.School holiday period shall be defined by the number of nights between the last day of term and the first day students attend in the next term and, in the event of odd number of nights, the father shall have the benefit of the extra night. Time shall commence on the afternoon of the last day of the school term and shall conclude either at the midpoint day or on the morning of the first day of the new school term as the case may be.
4.4.In the event Father’s Day falls on a non-contact weekend from 6.00pm the day prior to Father’s Day until before school Monday.
4.5.From 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an even number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an odd number.
Order 4 is suspended until the eighth Thursday after the date of these orders.
The father is restrained from contacting the child until the period of suspension concludes.
In the event Mother’s Day falls on the father’s weekend, such time shall be suspended from 6.00pm on the day before Mother’s Day.
The mother shall have time with the child from 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an odd number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an even number.
When changeovers do not take place at the child’s school, the father is to collect the child from the mother’s residence at the commencement of the father’s time and return the child to the mother’s residence at the conclusion of that time.
The mother is at liberty to attend the child’s school to attend events that parents usually attend.
Upon the suspension contained in Order 4 expiring 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.

Keep reading for free

Create a free CaseChat account to read Chapman and Carrington and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] FamCA 550
Decision Date: 11 July 2008

CaseChat Overview and Summary

In the matter of *Chapman and Carrington*, Watts J considered parenting orders concerning a child born in July 1995. The dispute involved the mother and father's respective roles and responsibilities in the child's life, including living arrangements, time spent with each parent, and specific restrictions and entitlements related to the child's schooling and performances. The court also addressed the child's name and the need for counselling and parenting education for both parties.

The court was required to determine the appropriate parenting arrangements for the child, including the allocation of parental responsibility, the child's primary residence, and the schedule for the child's time with each parent. Further issues included the father's contact with the child, particularly in light of a period of suspension, restrictions on the child's performances, and the involvement of counselling and parenting courses. The court also had to consider the child's name and the dissemination of the court's orders to relevant parties, including the child's school and the Independent Children's Lawyer.

Watts J discharged all previous parenting orders and made new orders establishing equal shared parental responsibility. The child was to live with the mother, with specific, detailed provisions for the child's time with the father, including during school terms, holidays, and on Father's Day and Christmas. Notably, the father's contact was suspended for an initial period, during which he was restrained from contacting the child. The court also imposed restrictions on the child's performances, particularly in venues where alcohol is served, and mandated counselling for the child, with both parents to equally share the costs. Both parties were ordered to attend a Parenting after Separation Course. The court also made orders regarding the child's name and the role of the Independent Children's Lawyer in explaining the orders to the child and providing them to the child's school. Finally, Justice Watts was appointed to manage any future applications concerning the child.

Orders

Orders of the court

All previous parenting orders be discharged.

The mother and father have equal shared parental responsibility for the child born … July 1995 (“the child”).

The child live with the mother.

The child have time with the father as follows:

4.1. During school terms from after school Thursday to before school Monday each alternate week.

4.2. One half of each school holiday period. The father shall have the first half of each period in odd numbered years and the second half in even numbered years unless otherwise agreed between the parties.

4.3. School holiday period shall be defined by the number of nights between the last day of term and the first day students attend in the next term and, in the event of odd number of nights, the father shall have the benefit of the extra night. Time shall commence on the afternoon of the last day of the school term and shall conclude either at the midpoint day or on the morning of the first day of the new school term as the case may be.

4.4. In the event Father’s Day falls on a non-contact weekend from 6.00pm the day prior to Father’s Day until before school Monday.

4.5. From 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an even number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an odd number.

Order 4 is suspended until the eighth Thursday after the date of these orders.

The father is restrained from contacting the child until the period of suspension concludes.

In the event Mother’s Day falls on the father’s weekend, such time shall be suspended from 6.00pm on the day before Mother’s Day.

The mother shall have time with the child from 6.00pm Christmas Eve until 6.00pm Christmas Day in years ending in an odd number and from 6.00pm Christmas Day to 6.00pm Boxing Day in years ending in an even number.

When changeovers do not take place at the child’s school, the father is to collect the child from the mother’s residence at the commencement of the father’s time and return the child to the mother’s residence at the conclusion of that time.

10.

The mother is at liberty to attend the child’s school to attend events that parents usually attend.

11.

Upon the suspension contained in Order 4 expiring the father is at liberty to attend the child’s school to attend events that parents usually attend.

12.

Both parties are entitled to obtain the child’s school reports issued by the school.

13.

The parties shall ensure the other is informed within a reasonable time of school events that come to that party’s attention when the child is in his or her care.

14.

The father shall not engage the child in any performances except:

14.1. On one occasion per fortnight during daylight hours on a Sunday at H or Y in Sydney city for a period not exceeding two hours;

14.2. As a peer activity with a group of other children from the child’s school;

14.3. At festivals.

15.

Pending further order, the child is not to perform in premises where alcohol is served.

16.

The parties shall ensure the child’s attendance with a counsellor as nominated by the Independent Children's Lawyer [who is at liberty to liaise with Dr W on this matter]. The parties shall not speak to the child about such counselling and shall respect the child’s privacy unless such counsellor advises the parties that it is something that would be in the child’s interest and each party equally pay the cost of the counsellor.

17.

With respect to the previous order the counsellor so nominated shall be provided with Dr W’s two reports and a copy of the Reasons for Judgment.

18.

Within two months of the date of these orders each of the parties shall enrol and attend a Parenting after Separation Course conducted by Relationships Australia. The parties are at liberty to attend such counselling together if they both agree.

19.

Neither party shall do any act or thing or sign any document to cause or encourage a circumstance in which the child is known by a name other than H … Carrington.

20.

The parties shall encourage the child to use the names “[H]”, “[Carrington]” and “[H Carrington]”.

21.

The child’s current school be provided by the Independent Children's Lawyer with a copy of these Orders.

22.

The Independent Children's Lawyer is requested to meet with the child and explain the Orders and my Reasons to him.

23.

Except for any appeal against these orders, a Judge be appointed to manage any further application filed in relation to the child and that until further order that Judge be Justice Watts, if he is reasonably available.

24.

Pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders .

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.