Cryall and Peterman (No 3) - [2007] FamCA 1741

FAMILY COURT OF AUSTRALIA

CRYALL & PETERMAN (NO. 3)

[2007] FamCA 1741

FAMILY LAW – CHILDREN – Interim parenting orders – with whom children shall live – with whom children shall spend time.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Cryall

RESPONDENT:

Mr Peterman

FILE NUMBER:

SYC

5885

2007

DATE DELIVERED:

5 September 2007

PLACE DELIVERED:

Sydney

JUDGMENT OF:

Loughnan JR

HEARING DATE:

5 September 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lethbridge SC

SOLICITOR FOR THE APPLICANT:

Meyer Pigdon, Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Maurice

SOLICITOR FOR THE RESPONDENT:

Barkus Edwards Doolan

Orders

IT IS ORDERED PENDING FURTHER ORDER:

That the children live with the parties as follows:
1.1In week1, [D] and [M] will live with the father until after school on Thursday, commencing 6 September 2007, when they, together with [T] will live with the mother until the beginning of school on Monday.
1.2In week 1, [T] will live with the mother.
1.3In week 2, [T] will live with the mother until after school on Thursday when she, together with [D] and [M] will live with the father until the beginning of school on Monday.
1.4In week 2, [D] and [M] will live with the father.
That pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [D] born … 1995, [M] born … 1998 and [T] born … 2001 and to facilitate such appointment the parties do forward all relevant documents filed in this matter to the Legal Services Commission of NSW as soon as possible.
That within 24 hours the solicitor for the father notify the Legal Services Commission of New South Wales of this order.
That each of the parties do all such things as may be necessary to facilitate the children’s attendance on the Independent Children’s Lawyer on such dates and times and places as required by the Independent Children’s Lawyer.
That the parties and the Independent Children’s Lawyer have leave to approach my Associate in Chambers in relation to any order they may seek by agreement for the appointment of a Chapter 15 Court Expert.
That pending further order the parties be restrained and an injunction is hereby granted restraining each of them from:
6.1consuming illegal drugs;
6.2consuming alcohol during any period when any of the children are in their care or within six hours prior to any such period;
6.3denigrating or criticising each other to or in the presence of the children and to the best of their ability, permitting any other person to do so;
6.4discussing these proceedings in the presence or hearing of the children or permitting any other person to do so.
That further consideration of this matter be adjourned to the Judicial Duty List at 9.30 am 24 October 2007.

THE COURT NOTES:

It is the intention of the Court that the children’s living arrangements made pursuant to these orders will be revisited on the adjourned date.

IT IS NOTED that…

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 Cryall and Peterman (No 3) 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: [2007] FamCA 1741
Decision Date: 5 September 2007

CaseChat Overview and Summary

In *Cryall and Peterman (No 3)*, Loughnan JR of the Federal Magistrates Court of Australia considered interim parenting orders concerning three children, [D], [M], and [T]. The dispute involved the living arrangements for the children and the conduct of the parents.

The court was required to determine the appropriate interim living arrangements for the children, the need for an Independent Children’s Lawyer, and whether injunctive relief was necessary to regulate the parents' behaviour. The court also considered the potential appointment of a Chapter 15 Court Expert.

Loughnan JR made orders for a shared parenting arrangement, alternating between the parents on a weekly basis, with specific provisions for the children’s movement between households. The court also appointed an Independent Children’s Lawyer to represent the children's interests and directed the parties to facilitate the lawyer's work. Crucially, the court granted an injunction restraining both parents from consuming illegal drugs, consuming alcohol when the children were in their care or within six hours prior, denigrating each other in the children's presence, or discussing the proceedings with the children. The matter was adjourned for further consideration, with the court noting its intention to revisit the children's living arrangements.

Orders

Orders of the court

IT IS ORDERED PENDING FURTHER ORDER:

That the children live with the parties as follows:

1.1 In week1, [D] and [M] will live with the father until after school on Thursday, commencing 6 September 2007, when they, together with [T] will live with the mother until the beginning of school on Monday.

1.2 In week 1, [T] will live with the mother.

1.3 In week 2, [T] will live with the mother until after school on Thursday when she, together with [D] and [M] will live with the father until the beginning of school on Monday.

1.4 In week 2, [D] and [M] will live with the father.

That pursuant to Section 68L of the Family Law Act 1975 THAT an Independent Children’s Lawyer be appointed to represent the interests of the children [D] born … 1995, [M] born … 1998 and [T] born … 2001 and to facilitate such appointment the parties do forward all relevant documents filed in this matter to the Legal Services Commission of NSW as soon as possible.

That within 24 hours the solicitor for the father notify the Legal Services Commission of New South Wales of this order.

That each of the parties do all such things as may be necessary to facilitate the children’s attendance on the Independent Children’s Lawyer on such dates and times and places as required by the Independent Children’s Lawyer.

That the parties and the Independent Children’s Lawyer have leave to approach my Associate in Chambers in relation to any order they may seek by agreement for the appointment of a Chapter 15 Court Expert.

That pending further order the parties be restrained and an injunction is hereby granted restraining each of them from:

6.1 consuming illegal drugs;

6.2 consuming alcohol during any period when any of the children are in their care or within six hours prior to any such period;

6.3 denigrating or criticising each other to or in the presence of the children and to the best of their ability, permitting any other person to do so;

6.4 discussing these proceedings in the presence or hearing of the children or permitting any other person to do so.

That further consideration of this matter be adjourned to the Judicial Duty List at 9.30 am 24 October 2007.

THE COURT NOTES:

It is the intention of the Court that the children’s living arrangements made pursuant to these orders will be revisited on the adjourned date.

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.