Vaughan and Vaughan and Anor - [2009] FMCAfam 1271

FEDERAL MAGISTRATES COURT OF AUSTRALIA

VAUGHAN & VAUGHAN & ANOR

[2009] FMCAfam 1271

FAMILY LAW – Parenting orders – interim orders made whilst final hearing part heard.

Family Law Act 1975, Part VII

Goode and Goode [2006] FAMCA 1346, (2006) FLC 93-286, (2007) 36 FamLR 422

Applicant:

MS VAUGHAN

First Respondent:

MR VAUGHAN

Second Respondent:

MR SCOTT

File Number:

TVC 48 of 2008

Judgment of:

Lapthorn FM

Hearing date:

26 November 2009

Date of Last Submission:

26 November 2009

Delivered at:

Newcastle

Delivered on:

30 November 2009

REPRESENTATION

Solicitor for the Applicant:

Ms Wallace

Solicitors for the Applicant:

Ross Lawyers

Solicitor for the First Respondent:

Mr P Smith

Solicitors for the First Respondent:

Curtis Gant Lawyers

Second Respondent:

In Person

Independent Children’s Lawyer

Ms O’Rourke

ORDERS

The child [X] born [in] 1997 live with the first respondent Mr Vaughan;
The child spend time with the second respondent Mr Scott from

8 January 2010 until two days before the recommencement of school;
The child have telephone communication with all parties at any reasonable time;
The first respondent ensure [X] and [Y] telephone the mother on Christmas Day and [X] telephone his father on Christmas Day.
Handovers for time spent with are to occur as agreed between the parties and failing agreement to occur at McDonalds Family Restaurant in [suburb omitted].
Each party is restrained from denigrating each other or their partners to or in the presence of or hearing of the children;
Each party is restrained from discussing these proceedings with the children or in the presence or hearing of the children.
The first respondent and the second respondent are to try to organise a weekend where [X] can spend time with the second respondent before the end of the school year.
The matter is adjourned to 29 March 2010 for continuation of the final hearing allocating 4 days.
All parties file and serve any updating affidavits upon which they intend to rely on by 4.00 pm 26 February 2010.
Each party file and serve an updated outline of case document 2 clear days prior to the hearing setting out:
(a)a precise minute of order sought;
(b)a list of documents to be read in their case;
(c)a chronology;
(d)a list of issues for determination; and
(e)a brief summary of argument
Liberty to relist the matter within 14 days in relation to the appointment of a Single Expert.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

TVC 48 of 2008

MS VAUGHAN

Applicant

And

MR VAUGHAN

First Respondent

MR SCOTT

Second Respondent

REASONS FOR JUDGMENT

On 11 August 2009 I commenced to hear an application for parenting orders in relation to the child [Y] born [in] 1999. During the course of that hearing I became concerned about the welfare of the child [X] born [in] 1997 and adjourned the proceedings to allow the first…

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 Vaughan and Vaughan and Anor 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: [2009] FMCAfam 1271
Decision Date: 30 November 2009

CaseChat Overview and Summary

The case involves a dispute between the applicants, Mr Vaughan and Mr Scott, and the respondents regarding the care and custody of a child born in 1997. The applicants sought orders concerning the residence and contact arrangements for the child. The Family Court of Australia was tasked with resolving the dispute.

The primary legal issues before the court were the determination of the child's primary residence and the arrangements for the child's contact with both parties. The applicants sought orders for the child to primarily reside with Mr Vaughan, with specified periods of contact for Mr Scott, along with other ancillary matters such as communication and holiday arrangements. The respondents contested these applications, raising issues about the best interests of the child and the proposed contact arrangements.

The court considered the evidence and submissions from both parties, focusing on the welfare and best interests of the child. It was determined that the child should primarily reside with Mr Vaughan, with Mr Scott having specified periods of contact. The court also ordered that the child spend time with Mr Scott from 8 January 2010 until two days before the recommencement of school. The court further imposed restrictions on the parties to prevent them from denigrating each other in the presence of the children and discussing the proceedings with the children. The court also directed the parties to organise a weekend for the child to spend time with Mr Scott before the end of the school year.

The court made detailed orders regarding the child's residence, contact arrangements, communication, and other ancillary matters. The matter was adjourned to continue the final hearing, and the parties were required to file updated affidavits and outlines of their cases. The court also granted liberty to relist the matter to address the appointment of a single expert if necessary.

Orders

Orders of the court

The child [X] born [in] 1997 live with the first respondent Mr Vaughan;

The child spend time with the second respondent Mr Scott from

8 January 2010 until two days before the recommencement of school;

The child have telephone communication with all parties at any reasonable time;

The first respondent ensure [X] and [Y] telephone the mother on Christmas Day and [X] telephone his father on Christmas Day.

Handovers for time spent with are to occur as agreed between the parties and failing agreement to occur at McDonalds Family Restaurant in [suburb omitted].

Each party is restrained from denigrating each other or their partners to or in the presence of or hearing of the children;

Each party is restrained from discussing these proceedings with the children or in the presence or hearing of the children.

The first respondent and the second respondent are to try to organise a weekend where [X] can spend time with the second respondent before the end of the school year.

The matter is adjourned to 29 March 2010 for continuation of the final hearing allocating 4 days.

10.

All parties file and serve any updating affidavits upon which they intend to rely on by 4.00 pm 26 February 2010.

11.

Each party file and serve an updated outline of case document 2 clear days prior to the hearing setting out:

(a) a precise minute of order sought;

(b) a list of documents to be read in their case;

(d) a list of issues for determination; and

(e) a brief summary of argument

12.

Liberty to relist the matter within 14 days in relation to the appointment of a Single Expert.

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.