Cook and Aiken - [2011] FMCAfam 1465

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COOK & AIKEN

[2011] FMCAfam 1465

FAMILY LAW – Children – parenting orders – interim orders – child aged 23 months – time to be spent by child with father – whether overnight time with father appropriate – best interests of child – equal shared parental responsibility – substantial and significant time.

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

Allen & Green [2010] FamCAFC 14; (2010) 42 Fam LR 538
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Mallahan & Mallahan [2010] FamCA 631

Applicant:

MS COOK

Respondent:

MR AIKEN

File Number:

SYC 1689 of 2011

Judgment of:

Scarlett FM

Hearing date:

16 September 2011

Date of Last Submission:

16 September 2011

Delivered at:

Sydney

Delivered on:

21 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr Levy

Solicitors for the Applicant:

Watts McCray

Counsel for the Respondent:

Mr Kearney

Solicitors for the Respondent:

Newnhams Solicitors

ORDERS

UNTIL FURTHER ORDER:

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child [X] born [in] 2009.
The child [X] is to live with the Mother.
The child is to spend time with the Father as follows:
(a)from 1:30pm each Monday until 8:00am on Tuesday;
(b)each Wednesday from 1:30pm until 7:00pm;
(c)each Thursday from 1:30pm until 7:00pm;
(d)each Saturday from 11:30am until 7:00pm; and
(e)from 2:00pm to 7:00pm on Christmas Day.
The Father’s time with the child is to be suspended from 29 December 2011 until and including 1 January 2012.
For the purposes of implementing Order (3) above, the Father is to collect the child from her day care centre at the commencement of his time with her and return her to her day care centre at the conclusion of his time with her on all days when the child would normally attend day care.
The parties are to attend a further Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act for the purposes of reviewing the child’s adjustment to spending overnight time with the father and considering the frequency of the child’s time with the father after the child has spent at least two (2) nights in the care of the father and as provided by s.11C of the said Act the Child Dispute Conference is to be reportable.
Liberty to apply on seven (7) days’ notice once the Child Dispute Conference referred to in Order (6) above has taken place.

IT IS NOTED that publication of this judgment under the pseudonym Cook & Aiken is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 1689 of 2011

MS COOK

Applicant

And

MR AIKEN

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for interim parenting orders concerning the parties’ daughter, [X], who is not yet two years old. She was born [in] 2009. She lives with her mother and has done so…

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 Cook and Aiken

Details

AGLC: Cook and Aiken [2011] FMCAfam 1465
Case: [2011] FMCAfam 1465
Decision Date: 21 September 2011

CaseChat Overview and Summary

The case of Cook and Aiken involved the parents of a child born in 2009, who were seeking a resolution concerning their child’s living arrangements and parental responsibilities. The matter was heard in the Family Court of Australia. The primary concern was to determine the best living arrangements for the child and the division of parental responsibilities between the mother and father.

The court was tasked with deciding the allocation of parental responsibilities and the specific schedule for the child to spend time with the father, considering the best interests of the child. Additionally, the court had to address the father’s suspension of visitation during a specified period and the logistics of the child’s transportation to and from daycare during the visitation times.

The court concluded that equal shared parental responsibility was in the child's best interests. It was determined that the child would live with the mother but would spend substantial time with the father on specific days and hours of the week. The court also ordered the suspension of the father’s visitation during a holiday period and mandated that the father collect and return the child from daycare during visitation times. Furthermore, the court required the parents to attend a further conference with a Family Consultant to review the child’s adjustment to overnight stays with the father and to consider future visitation arrangements. The parents were granted liberty to apply for further orders after the conference had taken place.

Orders

Orders of the court

UNTIL FURTHER ORDER:

The Applicant Mother and the Respondent Father are to have equal shared parental responsibility for the child [X] born [in] 2009.

The child [X] is to live with the Mother.

The child is to spend time with the Father as follows:

(a) from 1:30pm each Monday until 8:00am on Tuesday;

(b) each Wednesday from 1:30pm until 7:00pm;

(d) each Saturday from 11:30am until 7:00pm; and

(e) from 2:00pm to 7:00pm on Christmas Day.

The Father’s time with the child is to be suspended from 29 December 2011 until and including 1 January 2012.

For the purposes of implementing Order (3) above, the Father is to collect the child from her day care centre at the commencement of his time with her and return her to her day care centre at the conclusion of his time with her on all days when the child would normally attend day care.

The parties are to attend a further Child Dispute Conference with a Family Consultant under the provisions of s.11F of the Family Law Act for the purposes of reviewing the child’s adjustment to spending overnight time with the father and considering the frequency of the child’s time with the father after the child has spent at least two (2) nights in the care of the father and as provided by s.11C of the said Act the Child Dispute Conference is to be reportable.

Liberty to apply on seven (7) days’ notice once the Child Dispute Conference referred to in Order (6) above has taken place.

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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