LUDLOW & NETTLE (No.2) - [2019] FCCA 1364

FEDERAL CIRCUIT COURT OF AUSTRALIA

LUDLOW & NETTLE (No.2)

[2019] FCCA 1364

Catchwords:
FAMILY LAW – Interim parenting – best interests of the children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65AA, 65D

Cases cited:

Banks & Banks [2015] Fam7CAFC 36
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286
Marvel & Marvel [2010] FamCA 240

Applicant:

MS LUDLOW

Respondent:

MR NETTLE

File Number:

PAC 5790 of 2018

Judgment of:

Judge Newbrun

Hearing date:

2 April 2019

Date of Last Submission:

30 April 2019

Delivered at:

Parramatta

Delivered on:

4 May 2019

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr Rosic

Solicitors for the Respondent:

Selvaggio Lawyers

Solicitors for the Independent Children's Lawyer:

Ms Hernandez of Claremont Legal

ORDERS

That the children [X] born … 2012, [Z] born … 2013 and [Y] born … 2013 (“the children”) live with the father.
That the children spend time with the mother as follows:
(a)Each Tuesday from 5:45 pm to 6:45 pm at [X]’s sports lessons and in the presence of Ms A. The mother and her baby [D] shall attend alone;
(b)That once the children start sport on a Saturday, the mother shall be at liberty to attend any of each of the three children’s sporting activities and the mother and her baby [D] shall attend alone. For the purpose of this Order:
(i)The father shall forward to the mother the sporting roster for each of the three children as soon as he receives same; and
(ii)In the event of last-minute changes to the roster for any reason, the father shall notify the mother of such changes as soon as is reasonably practicable.
(c)That the children shall spend time with the mother at Suburb J Contact Centre for two hours each alternate week, on such days and times at the contact centre’s availability.
(d)That for the purposes of facilitating the children spending time with the mother pursuant to Order 2 (c), both parents shall:
(i)No later than seven (7) days from the date hereof, arrange an appointment with the management of the contact centre for assessment for suitability of supervised time;
(ii)Attend such assessment as directed by the management of the contact centre; and
(iii)Otherwise comply with all reasonable rules of the centre, including but not limited to the delivery and collection of the children, the attendance of and departure from the centre and the provision of identification.
(iv)The mother is responsible for any costs associated with the mother spending time with the children at the centre;
(v)That for the purposes of implementing the mother’s supervised time with the children, the father shall deliver the children to, and collect the children from the contact centre at the commencement and conclusion of the mother’s supervised time.
(e)That the mother be at liberty to FaceTime the children each Monday and Wednesday between 6:30 pm and 7 pm, and each Saturday between 8:30 am and 9 am. The Saturday FaceTime shall cease once…

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 LUDLOW & NETTLE (No.2)

Details

AGLC: Ludlow and Nettle (No.2) [2019] FCCA 1364
Case: [2019] FCCA 1364
Decision Date: 4 May 2019

CaseChat Overview and Summary

In the matter of *Ludlow & Nettle (No.2)*, Judge Newbrun considered interim parenting orders concerning three children. The dispute involved the arrangements for the children's living situation and time spent with each parent.

The court was required to determine the best interests of the children in establishing interim parenting orders. This involved considering the children's welfare and making decisions regarding their residence, time with each parent, and specific conditions to ensure their safety and well-being.

The court's reasoning led to orders that the children would live with the father. The mother was granted specific, supervised time with the children, including attendance at sports lessons and contact centre visits, with detailed provisions for facilitation and supervision. Further orders addressed parental conduct, including prohibitions on physical discipline, limitations on the father's alcohol consumption when the children are in his care, and mandatory participation in parenting programs for both parents. The mother was also directed to engage with Brighter Futures and follow their recommendations.

Orders

Orders of the court

That the children [X] born … 2012, [Z] born … 2013 and [Y] born … 2013 (“the children”) live with the father.

That the children spend time with the mother as follows:

(a) Each Tuesday from 5:45 pm to 6:45 pm at [X]’s sports lessons and in the presence of Ms A. The mother and her baby [D] shall attend alone;

(b) That once the children start sport on a Saturday, the mother shall be at liberty to attend any of each of the three children’s sporting activities and the mother and her baby [D] shall attend alone. For the purpose of this Order:

(i) The father shall forward to the mother the sporting roster for each of the three children as soon as he receives same; and

(ii) In the event of last-minute changes to the roster for any reason, the father shall notify the mother of such changes as soon as is reasonably practicable.

(c) That the children shall spend time with the mother at Suburb J Contact Centre for two hours each alternate week, on such days and times at the contact centre’s availability.

(d) That for the purposes of facilitating the children spending time with the mother pursuant to Order 2 (c), both parents shall:

(i) No later than seven (7) days from the date hereof, arrange an appointment with the management of the contact centre for assessment for suitability of supervised time;

(ii) Attend such assessment as directed by the management of the contact centre; and

(iii) Otherwise comply with all reasonable rules of the centre, including but not limited to the delivery and collection of the children, the attendance of and departure from the centre and the provision of identification.

(iv) The mother is responsible for any costs associated with the mother spending time with the children at the centre;

(v) That for the purposes of implementing the mother’s supervised time with the children, the father shall deliver the children to, and collect the children from the contact centre at the commencement and conclusion of the mother’s supervised time.

(e) That the mother be at liberty to FaceTime the children each Monday and Wednesday between 6:30 pm and 7 pm, and each Saturday between 8:30 am and 9 am. The Saturday FaceTime shall cease once the children start sport.

That the mother and the father refrain from using any physical discipline, or allow any other person to use physical discipline on the children.

That the father be prohibited from drinking more than two standard alcoholic drinks per day when the children are in his care. The father is to ensure that he removes the children from the presence of any person who he believes to be affected by alcohol.

That the father ensures that he completes the 1-2-3 Magic and Emotion Coaching Parenting program at Family Childhood Services and provide a certificate of completion to the Independent Children’s Lawyer.

That within 7 days from the date of the making of these orders, the mother and father shall contact Catholic Care on …, and register and complete the ‘Keeping Kids in Mind’ parenting program. Each parent is to forward to the Independent Children’s Lawyer a certificate of completion.

That the mother take all steps necessary to engage with Brighter Futures and follow all of their recommendations should the mother be deemed suitable for their services.

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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