Radford and Ridley - [2018] FamCA 256

FAMILY COURT OF AUSTRALIA

RADFORD & RIDLEY

[2018] FamCA 256

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Family Violence – Cultural issues – Best interests of the child – Whether to rebut presumption of equal shared parental responsibility – Where the mother has relocated with the child – Where the father denies domestic violence – Meaningful relationship – The effect of a change in the child’s circumstances – Inference to be drawn against a party who does not present a witness – Child’s views – Child’s wishes – Ability of the parents to communicate – Importance of the child maintaining a connection to culture and heritage

Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 61DA, 61DA(2), 65DAA, 69ZT, 69ZN, 69ZW
Family Law Rules 2004 (Cth) r 15.13

Amador & Amador [2009] FamCAFC 196
Benson & Drury [2017] FamCA 578
Champness & Hanson (2009) FLC 93-407
Kuhl v Zurich Financial Services Australia Ltd & Anor (2011) 243 CLR 361
Sawant & Karanth [2014] FamCAFC 235
Sigley & Evor [2011] FamCAFC 22
Zahawi & Rayne [2016] FamCAFC 90

The Hon Justice Steven Strickland & Kristen Murray, ‘A Judicial Perspective on the Australian Family Violence Reforms 12 Months On’ (Paper presented at the Association of Family and Conciliation Courts 50^th annual conference, Los Angeles, 1 June 2013)

APPLICANT:

Ms Radford

RESPONDENT:

Mr Ridley

INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Mediation & Family Law

FILE NUMBER:

BRC

7433

2011

DATE DELIVERED:

26 April 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Berman J

HEARING DATE:

10, 11 and 12 April 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Dr C McConaghy

SOLICITOR FOR THE APPLICANT:

ATSILS

COUNSEL FOR THE RESPONDENT:

Litigant in Person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr M Taylor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Carter Farquar Mediation & Family Law

Orders

That the final orders made on 17 March 2014 as amended 1 April 2014 be discharged.
That the mother have sole parental responsibility in relation to X born … 2010 (“the child”) PROVIDED that there be a requirement that she will advise the father in writing (electronically or otherwise) and provide her view about any major issue affecting the child’s health (including dental) or the child’s education and shall consult with the father about such issues, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.
That the child live with the mother.
That the child shall spend time with the father as follows:-
(a)For seven (7) days to be taken in the first week of the Queensland gazetted school holidays at the end of Terms 2 and 3 as may be agreed, but in default of agreement the father’s time is to commence at 10am on the first Monday of the holidays and to conclude at 10am on…

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 Radford and Ridley

Details

AGLC: Radford and Ridley [2018] FamCA 256
Case: [2018] FamCA 256
Decision Date: 26 April 2018

CaseChat Overview and Summary

In the matter of Radford and Ridley, Berman J considered an application to discharge previous final orders concerning parental responsibility and the child's living arrangements. The dispute centred on the arrangements for the parties' child, X, born in 2010.

The court was required to determine the appropriate orders for parental responsibility, the child's residence, and the time the child would spend with each parent. Additionally, the court had to consider provisions for communication between the child and the father, the sharing of costs associated with the child's travel, and the exchange of information regarding the child's health and education. The court also addressed the conduct of the parents towards each other in the child's presence and the role of an Independent Children's Lawyer.

Berman J ordered that the previous final orders be discharged. The mother was granted sole parental responsibility, with the proviso that she must consult the father in writing on major issues concerning the child's health and education. If no agreement was reached, the mother would have the final decision-making authority. The child was ordered to live with the mother, and specific arrangements were made for the child to spend time with the father during school holidays, including detailed provisions for notice, travel costs, and handover locations. The father was granted specific times for telephone communication with the child, facilitated by the mother, and was restrained from inquiring about the mother's personal circumstances. The mother was also ordered to keep the father informed of the child's health professionals, hospitalisations, and educational matters, and both parents were restrained from denigrating each other in the child's presence. The order for the appointment of an Independent Children's Lawyer was discharged.

Orders

Orders of the court

That the final orders made on 17 March 2014 as amended 1 April 2014 be discharged.

That the mother have sole parental responsibility in relation to X born … 2010 (“the child”) PROVIDED that there be a requirement that she will advise the father in writing (electronically or otherwise) and provide her view about any major issue affecting the child’s health (including dental) or the child’s education and shall consult with the father about such issues, but if no agreement is reached between the parties THEN the mother shall make the final decision and advise the father in writing of that decision.

That the child live with the mother.

That the child shall spend time with the father as follows:-

(a) For seven (7) days to be taken in the first week of the Queensland gazetted school holidays at the end of Terms 2 and 3 as may be agreed, but in default of agreement the father’s time is to commence at 10am on the first Monday of the holidays and to conclude at 10am on the following Monday;

(b) For ten (10) days in the Queensland gazetted Christmas school holidays as may be agreed between the parties but in default of agreement to commence from 10am on 2 January 2019 and each alternate year thereafter and from 10am on the first Monday of the Christmas school holidays in 2020 and each alternate year thereafter;

(d) That the father’s time with the child on each separate occasion is conditional upon him giving twenty eight (28) days’ notice of his intention to spend time with the child and within forty eight (48) hours of the mother providing either an invoice or an advice as to the cost of the child’s return airfare he shall transfer one half of the said travel cost to an account as nominated by the mother;

(e) That the child spend such other time with the father as may be agreed between the parties.

That to give effect to the periods of time to be spent by the father, handover of the child shall be to and from an agreed meeting point at the commencement and conclusion of time PROVIDED that in default of agreement the mother shall nominate a public place to be the point of handover.

That the father shall be at liberty to forward written communication to the child at an address nominated by the mother.

That the father communicate with the child by telephone as follows:-

(a) Each Wednesday between 5pm and 6pm;

(b) On Christmas Day, Easter Sunday, Father’s Day and the child and father’s birthdays at times as may be agreed but in default of agreement between 4pm and 6pm;

PROVIDED that the said calls shall be facilitated and initiated by the mother.

That the father is restrained from asking the child details or information about the mother’s personal circumstances during any telephone communication or time spent with the child.

That the mother shall furnish to the father a list of names, addresses and telephone numbers of the child’s treating health professionals and shall keep the father informed of any changes to such details.

10.

That the mother shall inform the father immediately of any hospitalization or medical emergency suffered by the child including and not limited to any illness of significance or injury requiring treatment or prescribed medication.

11.

The parties shall refrain from denigrating the other in the presence of the child.

12.

The mother shall keep the father informed of any educational facility at which the child attends and shall obtain and provide copies of all school reports and any other correspondence received from the school in relation to the education of the child.

13.

That the order for the appointment of the Independent Children’s Lawyer is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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