Clement and Clement - [2009] FamCA 1355

FAMILY COURT OF AUSTRALIA

CLEMENT & CLEMENT

[2009] FamCA 1355

FAMILY LAW – CHILDREN – With whom a child spends time – Child's views – Best interests of a child

Family Law Act 1975 (Cth)

APPLICANT:

Mr Clement

RESPONDENT:

Ms Clement

FILE NUMBER:

PAC

2925

2008

DATE DELIVERED:

20 November 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Collier J

HEARING DATE:

20 November 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Greenaway

SOLICITOR FOR THE APPLICANT:

REIMER WINTER WILLIAMSON

COUNSEL FOR THE RESPONDENT:

Mr Dowd

SOLICITOR FOR THE RESPONDENT:

WATTS MCCRAY

Orders

That all existing parenting orders in respect of the child E born … September 2002 be and are hereby discharged.
That the parents have equal shared parental responsibility for the said child.
That the said child live with the mother.
That the said child spend time with the father as follows:
(a)Each third weekend from after school Friday to 5pm Sunday extending to 5pm Monday in the case of a non-weekend.
(i)The first such weekend is to be in accordance with the current regime.
(b)During short school holidays from 5pm on the last day of term to 5pm on the Saturday closest to the midpoint of the holiday period.
(c)During the December 2009 / January 2010 school holiday period and each alternate year thereafter from 10am on 27 December to 5pm on 6 January and from 10am on 17 January until 5pm on 26 January.
(d)During the December 2010 / January 2011 school holiday period and each alternate year thereafter from 10am on 23 December to 5pm on 2 January and from 10am on 11 January to 5pm on 17 January.
That for the purpose of the father spending time with the child:
(a)The father shall ensure that he notifies the mother of his availability to collect the child from school.
(b)If shall be the father’s responsibility on all occasions to collect the child from school and in event he is required by these Orders to collect the child at times other than the conclusion of school he is to collect the child from the mother’s place of residence.
(c)It shall be the father’s responsibility to return the child to the mother’s home at the conclusion of each period of time he spends with the child.
That the father ensure the child is made available to attend swimming activities every second Friday the child spends time with him.
That within seven days from the date of these Orders, the mother do all things and execute all documents necessary to include the father’s name in any document entitling him to communicate with the child’s school and receive all documents relating to school activities.
That each party keep the other advised of up to date contact telephone numbers and residential addresses.
That each party shall ensure the other is notified as soon as practicable in the event of any accident or emergency involving the child whilst the child is in their care.
That all outstanding applications be and…

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 Clement and Clement

Details

AGLC: Clement and Clement [2009] FamCA 1355
Case: [2009] FamCA 1355
Decision Date: 20 November 2009

CaseChat Overview and Summary

In *Clement and Clement*, Collier J considered parenting orders concerning a child born in September 2002. The dispute involved the arrangements for the child's living situation and time spent with each parent.

The court was required to determine the nature of parental responsibility, where the child would live, and the specific arrangements for the child to spend time with each parent. This included establishing a schedule for weekend and holiday contact, as well as detailing the practicalities of the father collecting and returning the child. The court also had to address communication with the child's school and emergency notification procedures.

Collier J ordered the discharge of all existing parenting orders and established equal shared parental responsibility. The child was to live with the mother, with specific, detailed provisions for the father to spend time with the child, including alternating weekends, school holidays, and specific dates during the December/January holiday periods. The orders also stipulated the father's responsibility for collection and return of the child, ensuring the child's participation in swimming activities, and requiring the mother to facilitate the father's access to school communications. The court further ordered that all outstanding applications be dismissed and that all issues be removed from the Active Pending Cases List.

Orders

Orders of the court

That all existing parenting orders in respect of the child E born … September 2002 be and are hereby discharged.

That the parents have equal shared parental responsibility for the said child.

That the said child live with the mother.

That the said child spend time with the father as follows:

(a) Each third weekend from after school Friday to 5pm Sunday extending to 5pm Monday in the case of a non-weekend.

(i) The first such weekend is to be in accordance with the current regime.

(b) During short school holidays from 5pm on the last day of term to 5pm on the Saturday closest to the midpoint of the holiday period.

(c) During the December 2009 / January 2010 school holiday period and each alternate year thereafter from 10am on 27 December to 5pm on 6 January and from 10am on 17 January until 5pm on 26 January.

(d) During the December 2010 / January 2011 school holiday period and each alternate year thereafter from 10am on 23 December to 5pm on 2 January and from 10am on 11 January to 5pm on 17 January.

That for the purpose of the father spending time with the child:

(a) The father shall ensure that he notifies the mother of his availability to collect the child from school.

(b) If shall be the father’s responsibility on all occasions to collect the child from school and in event he is required by these Orders to collect the child at times other than the conclusion of school he is to collect the child from the mother’s place of residence.

(c) It shall be the father’s responsibility to return the child to the mother’s home at the conclusion of each period of time he spends with the child.

That the father ensure the child is made available to attend swimming activities every second Friday the child spends time with him.

That within seven days from the date of these Orders, the mother do all things and execute all documents necessary to include the father’s name in any document entitling him to communicate with the child’s school and receive all documents relating to school activities.

That each party keep the other advised of up to date contact telephone numbers and residential addresses.

That each party shall ensure the other is notified as soon as practicable in the event of any accident or emergency involving the child whilst the child is in their care.

10.

That all outstanding applications be and are hereby dismissed.

11.

That all issues be removed from the Active Pending Cases List.

12.

That all material produced on subpoena, if any, be returned not before fifty-six days from the date of these Orders.

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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