Ferraro and Ferraro - [2010] FamCA 142

FAMILY COURT OF AUSTRALIA

FERRARO & FERRARO

[2010] FamCA 142

FAMILY LAW – CHILDREN - interim orders - minimal evidence.
FAMILY LAW – INJUNCTIONS - Injunctions relating to exclusion from business by both parties - Need for evidence to show that there is likely to be damage to interests.

Family Law Act 1975 (Cth)

Davis v Davis (1976) FLC 90-062
Goode & Goode (2006) FLC 92-386
S & S [2002] FamCA 59
Sieling v Sieling (1979) FLC 90-627

APPLICANT:

Ms Ferraro

RESPONDENT:

Mr Ferraro

FILE NUMBER:

MLC

1293

2010

DATE DELIVERED:

2 March 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

25 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

DR Ingleby

SOLICITOR FOR THE APPLICANT:

Kliger Partners

COUNSEL FOR THE RESPONDENT:

MR Holmes

SOLICITOR FOR THE RESPONDENT:

McDonald Slater & Lay

Orders

Until further order, the child X FERRARO born … June 1998 live with the husband as follows:
(a)from the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week commencing on Thursday 4 March 2010;
(b)from the conclusion of school on Thursday until the commencement of school on the following Friday morning in each alternate week commencing on Thursday 11 March 2010.
Until further order, the child X live with the wife at all times other than those set out in paragraph 1.
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 the parties attend a conciliation conference with a registrar of the Court at 11.00am on 17 May 2010 for the purposes of making a genuine effort to resolve all financial issues in dispute between them.
For the purpose of paragraph 4, each party exchange with the other, all of the documents required for a conciliation conference and otherwise comply with the provisions of Rule 12.05 of the Family Law Rules 2004 including the preparation of a financial questionnaire and balance sheet that would comply with the terms of Rule 12.06.
That the interim applications contained in the application filed on 12 February 2010 and the interim orders sought in the response filed 22 February 2010 are otherwise dismissed.
That the parties have liberty to apply for further interim parenting orders after the completion of the conciliation conference and after they have received a report from Dr N or other similar psychologist.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 1293 of 2010

Ms Ferraro

Applicant

And

Mr Ferraro

Respondent

REASONS FOR JUDGMENT

Mr Ferraro and Ms Ferraro are husband and wife. They…

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 Ferraro and Ferraro

Details

AGLC: Ferraro and Ferraro [2010] FamCA 142
Case: [2010] FamCA 142
Decision Date: 2 March 2010

CaseChat Overview and Summary

In *Ferraro and Ferraro*, heard by Cronin J, the dispute concerned interim parenting orders for a child, X, born in June 1998. The proceedings also involved applications relating to financial matters between the parties.

The court was required to determine the interim living arrangements for the child X, including the specific days and times the child would spend with each parent. Additionally, the court needed to address the resolution of financial issues between the parties and the dismissal of certain interim applications.

Cronin J made orders for the child X to live with the husband on alternate weeks, commencing from Thursday of one week until Monday of the following week, and then from Thursday until Friday morning in the alternate week. The child was to live with the wife at all other times. The court also ordered the parties to attend a conciliation conference to attempt to resolve financial disputes, requiring them to exchange relevant financial documents and prepare financial questionnaires and balance sheets in accordance with the Family Law Rules 2004. Interim applications filed by the parties were otherwise dismissed, with liberty to apply for further interim parenting orders after the conciliation conference and receipt of a psychologist's report.

Orders

Orders of the court

Until further order, the child X FERRARO born … June 1998 live with the husband as follows:

(a) from the conclusion of school on Thursday until the commencement of school on the following Monday in each alternate week commencing on Thursday 4 March 2010;

(b) from the conclusion of school on Thursday until the commencement of school on the following Friday morning in each alternate week commencing on Thursday 11 March 2010.

Until further order, the child X live with the wife at all times other than those set out in paragraph 1.

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 the parties attend a conciliation conference with a registrar of the Court at 11.00am on 17 May 2010 for the purposes of making a genuine effort to resolve all financial issues in dispute between them.

For the purpose of paragraph 4, each party exchange with the other, all of the documents required for a conciliation conference and otherwise comply with the provisions of Rule 12.05 of the Family Law Rules 2004 including the preparation of a financial questionnaire and balance sheet that would comply with the terms of Rule 12.06.

That the interim applications contained in the application filed on 12 February 2010 and the interim orders sought in the response filed 22 February 2010 are otherwise dismissed.

That the parties have liberty to apply for further interim parenting orders after the completion of the conciliation conference and after they have received a report from Dr N or other similar psychologist.

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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