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Cording & Cording (No 2)

Cording & Cording (No 2)

Case [2022] FedCFamC2F 1229 12 September 2022

Parental Responsibility

Best Interests of the Child

Substantial and Significant Time

Equal Shared Parental Responsibility

Relocation

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Cording & Cording (No 2) [2022] FedCFamC2F 1229

File number(s): NCC 3498 of 2018

Judgment of: JUDGE KEARNEY

Date of judgment: 12 September 2022

Catchwords: FAMILY LAW – parenting – relocation interstate sought for two girls aged 8 & 6 – poor co-parenting and communication – sole parental responsibility granted to parent with capacity to promote meaningful relationship with other parent – substantial and significant time only if practicable by location – regular time if party chooses to relocate interstate away from children - prescriptive orders to reduce the risk of ongoing parental conflict – best interest of children

Legislation: Family Law Act 1975 (Cth)

Cases cited:
AMS v AIF [1999] HCA 26

Franklyn & Franklyn [2019] FamCAFC 256

Hepburn & Noble [2010] FamCAFC 111

Mazorski & Albright [2007] FamCA 520

MRR & GRR [2010] HCA 4

Slater v Light [2011] FamCAFC 1

Star & Duggan [2009] FamCAFC 115

Taylor & Barker [2007] FamCA 1246

U v U [2002] HCA 36

Division: Division 2 Family Law

Number of paragraphs: 349

Date of hearing: 18-20 July 2022

Place: Town B

Counsel for the Applicant: Mr Rugendyke

Solicitor for the Applicant: Lindeman Lawyers

Counsel for the Respondent: Mr Todd

Solicitor for the Respondent: Mills Oakley Lawyers

Solicitor for the Independent Children's Lawyer: Ms McGregor, McGregor Family Law
ORDERS

NCC 3498 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CORDING

Applicant

AND:
MS CORDING

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

12 September 2022

THE COURT ORDERS THAT:
1.The father shall have sole parental responsibility for X born in 2014 (‘X’) and Y born in 2016 (‘Y’) (collectively ‘the children’).
2.For the purpose of Order 1, the father shall notify the mother in writing of any major long term decisions regarding the children including but not limited:
(a)Any educational decisions for either of the children; and
(b)Any medical decisions for either of the children including specialist appointments or counselling appointments.

3.The children shall live with the father.
4.Notwithstanding Order 1, the children shall remain enrolled and continue to attend Town Z Public School for their primary education.

Term time
5.In the event that by no later than Monday 12 December 2022, the mother relocates and lives within a radius of a 45-minute drive from the place where the children attend school THEN the children shall spend time with her during school terms as exercised by the children’s school (‘term time’) as follows:-
(a)From the conclusion of school (or 3:00pm) Thursday to the commencement of school (or 9:00am) Monday on each alternate week commencing on the first Thursday after the mother relocates; and
(b)From the conclusion of school (or 3:00pm) Thursday to the commencement of school (or 9:00am) Friday on every other alternate week commencing on the second Thursday after the mother relocates.

6.To facilitate Order 5 and within 24 hours of her relocation; the mother shall notify the father (by…

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 Cording & Cording (No 2)

Details

AGLC: Cording & Cording (No 2) [2022] FedCFamC2F 1229
Case: [2022] FedCFamC2F 1229
Decision Date

CaseChat Overview and Summary

Cording & Cording (No 2) was a case in which the Federal Circuit and Family Court of Australia considered a dispute between parents about the residence and time to be spent with each of their two young daughters. The father sought for the girls to live with him and spend time with the mother, whilst the mother sought for the girls to live with her in Queensland and for the girls to have equal time with the father. The Independent Children's Lawyer sought for the girls to have substantial and significant time with both parents. The Court found that it was not in the girls' best interests for them to have equal time or substantial and significant time with the mother because of the mother's limited capacity to promote a meaningful relationship between the girls and the father, and the parties' poor communication. The Court found that the girls' best interests would be met by the girls living with the father and spending time with the mother, provided it was reasonably practicable for them to do so. The Court ordered that if the mother did not return to within close proximity of the girls' school by a specified date, then the girls would spend term time with the mother for five nights a fortnight. The Court also made various other orders to reduce the risk of ongoing parental conflict and to protect the girls from exposure to that conflict. The Court dismissed the Independent Children's Lawyer's application for costs.

Orders