Clarke & Snider - [2007] FamCA 89

[2007] FamCA 89

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT BRISBANE No. BRF2083/01

IN THE MATTER OF:

Clarke

P and M

Applicants

AND

Snider

Clarke

Respondents

EX TEMPORE JUDGMENT

CORAM:	BENJAMIN J
DATE OF HEARING:	19 January 2007
DATE OF JUDGMENT:	19 January 2007

APPEARANCES:

Ms Armstrong	Appears on behalf of Applicants
No appearance	On behalf of Respondents
Mr Williams	Appears on behalf of Independent Children's Lawyer

CATCHWORDS:

FAMILY LAW - CHILDREN - Consent Orders

ORDERS

THAT P Clarke and M Clarke (“the applicant maternal aunt and applicant maternal grandmother respectively”) have equal shared parental responsibility in respect of the children N born in January 2004 and D born in June 1995 (“the children”).
THAT the said children live with the applicant aunt and applicant grandmother.
THAT the respondent father spend time with the children at all times by agreement and failing agreement as follows:-
(a)from 9.00am Saturday until 3.00pm Sunday each alternate weekend during Queensland school term;
(b)the children to be at liberty not to attend such contact time if they express a significant opposition to it;
(c)should the children not wish to attend such time with the father the children to telephone the father and advise him that such time will not be occurring;
(d)that the children will spend time with the respondent father on Father’s Day from 9.00am until 5.00pm;
(e)that the father shall give the applicant aunt and applicant grandmother at least six weeks written notice of his intention to commence spending time with the children in accordance with this order.
THAT the respondent mother spend time with the children at the applicant aunt or applicant grandmother’s home upon notifying the applicants that such time is to occur.
THAT the children be at liberty to contact any or all of the parties at reasonable times by telephone.
THAT the parties be at liberty to contact the children at reasonable times by telephone when the children are in the other parties care.
THAT the children’s medical practitioner, day care centres, dentists, schools and other health or education related facilities are authorised to provide any information in relation to the childrens’ health or education in relation to any of the parties in these proceedings at that party’s expense.
THAT neither party discuss or have such discussion in the presence of or hearing of the children family law proceedings or issues with the children or place any blame against the children on the outcome of any of the family law proceedings.
THAT the parties promptly notify each other in the event of any significant illness, hospitalisation or injury to the children and ensure that the other is fully informed of the medical needs of such time when the children are residing with or having contact with the party.
THAT all parties keep the others informed as to their place of residence and any change of telephone numbers, mobile telephone numbers or addresses within seventy two hours of such change occurring, such notice…

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 Clarke & Snider

Details

AGLC: Clarke and Snider and Anor [2007] FamCA 89
Case: [2007] FamCA 89
Decision Date: 19 January 2007

CaseChat Overview and Summary

This matter concerned an application for parenting orders in relation to two children, N and D. The applicants were the maternal aunt and maternal grandmother of the children, and the respondents were the children's father and mother.

The court was required to determine the most appropriate arrangements for the children's living situation and time spent with each parent, considering the best interests of the children. Key issues included the allocation of parental responsibility, the children's residence, and the nature and extent of the father's and mother's contact with the children.

The court ordered that the applicant maternal aunt and grandmother have equal shared parental responsibility for the children and that the children live with them. The respondent father was granted specific, alternate weekend contact during school terms, with a provision allowing the children to refuse contact if they expressed significant opposition. The father was also to have contact on Father's Day and required to provide six weeks' written notice before commencing contact. The respondent mother was permitted to spend time with the children at the applicants' home upon notification. The orders also included provisions for communication between parties, disclosure of information regarding the children's health and education, and prohibitions against denigrating other parties in the presence of the children. The court also noted that particulars of obligations and consequences of contravention were set out in an attached Fact Sheet, pursuant to sections 65DA(2) and 62B of the relevant legislation. Leave was granted for the respondents to apply in respect of these orders within twenty-eight days of service.

Orders

Orders of the court

THAT P Clarke and M Clarke (“the applicant maternal aunt and applicant maternal grandmother respectively”) have equal shared parental responsibility in respect of the children N born in January 2004 and D born in June 1995 (“the children”).

THAT the said children live with the applicant aunt and applicant grandmother.

THAT the respondent father spend time with the children at all times by agreement and failing agreement as follows:-

(a) from 9.00am Saturday until 3.00pm Sunday each alternate weekend during Queensland school term;

(b) the children to be at liberty not to attend such contact time if they express a significant opposition to it;

(c) should the children not wish to attend such time with the father the children to telephone the father and advise him that such time will not be occurring;

(d) that the children will spend time with the respondent father on Father’s Day from 9.00am until 5.00pm;

(e) that the father shall give the applicant aunt and applicant grandmother at least six weeks written notice of his intention to commence spending time with the children in accordance with this order.

THAT the respondent mother spend time with the children at the applicant aunt or applicant grandmother’s home upon notifying the applicants that such time is to occur.

THAT the children be at liberty to contact any or all of the parties at reasonable times by telephone.

THAT the parties be at liberty to contact the children at reasonable times by telephone when the children are in the other parties care.

THAT the children’s medical practitioner, day care centres, dentists, schools and other health or education related facilities are authorised to provide any information in relation to the childrens’ health or education in relation to any of the parties in these proceedings at that party’s expense.

THAT neither party discuss or have such discussion in the presence of or hearing of the children family law proceedings or issues with the children or place any blame against the children on the outcome of any of the family law proceedings.

THAT the parties promptly notify each other in the event of any significant illness, hospitalisation or injury to the children and ensure that the other is fully informed of the medical needs of such time when the children are residing with or having contact with the party.

THAT all parties keep the others informed as to their place of residence and any change of telephone numbers, mobile telephone numbers or addresses within seventy two hours of such change occurring, such notice to be in writing at the last known address of the parties.

THAT none of the parties denigrate the other or their partners or families within the hearing or the presence of the children or allow any other person to do so in the hearing or the presence of the children.

THAT 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.

THAT leave be given for each of the respondents to apply in respect of these orders within twenty eight days after service of these orders upon them.

THAT this matter be removed from the list of cases requiring determination.

THAT all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

THAT the appointment of the Independent Children’s Lawyer is terminated as and from three (3) months from the date of this order.

IT IS DIRECTED

THAT a copy of these orders be forwarded by ordinary pre-paid post by the Independent Children’s Lawyer to each of the respondents within twenty one days of the date of these orders.

THAT a copy of my reasons be ordered and placed on the court file.

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.