RADLEY & RADLEY - [2013] FamCA 346

FAMILY COURT OF AUSTRALIA

RADLEY & RADLEY

[2013] FamCA 346

FAMILY LAW – CHILDREN – With whom the children spend time – where the children initially spend time with the father under supervision at a contact centre graduating to unsupervised contact on occasional weekends and in school holidays – where the children would benefit from ongoing meaningful relationships with both parents – where the children were previously at risk from harm through exposure to family violence by the father – where the father needed time to achieve full rehabilitation – where the father had an extensive history of perpetrating family violence upon the mother – where the father had voluntarily engaged various medical and psychological services in order to rehabilitate his excessive use of alcohol and behaviour

FAMILY LAW – RELOCATION – Where the children live with the mother – where the mother was not restrained from relocating her residence with the children from its current location – where the mother was restrained from relocating their residence to a place outside a three hundred and twenty five (325) kilometre radius from Sydney city post office – where the mother desired to relocate closer to her family and to an area with greater access to education and employment opportunities – where the mother remained fearful of the father

FAMILY LAW – CHILDREN – Parental Responsibility – where the mother has sole parental responsibility for the children – where the presumption of equal shared parental responsibility does not apply due to the family violence perpetrated by the father – where the parties were unable to communicate about the children

FAMILY LAW – CHILDREN – Family Violence – finding on the balance of probabilities the father perpetrated family violence upon the mother throughout their relationship – where the father was convicted of assaulting the mother on two separate occasions – where injunctions were granted against the father restraining his attendance at the mother’s home and the children’s schools

FAMILY LAW - PRACTICE AND PROCEDURE – Evidence of Family Consultant – where the Court rejected the Family Consultant’s recommendation that the children spend no time with the father – where the Court must evaluate and not uncritically adopt the evidence of the Family Consultant – Bostoi & Bostoi [2011] FamCAFC 132 and Whipp & Richards [2012] FamCAFC 11 applied

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D, 65AA, 65DAA, 65DAC and 65DAE, 68B
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

AMS v AIF (1999) 199 CLR 160
Bostoi & Bostoi [2011] FamCAFC 132
Cales & Cales (2010) FLC 93-459
Goode & Goode (2006) FLC 93-286
Hepburn & Noble (2010) FLC 93-438
Malcolm v Monroe [2011] FLC 93-460
McCall v Clark (2009) 41 Fam LR 483
MRR v GR (2010) 240 CLR 461
Sampson v Hartnett (No.10) (2007) FLC 93-350
Taylor v Barker (2008) 37 Fam LR 461
U v U (2002) 211 CLR 238
Whipp & Richards [2012] FamCAFC 11

APPLICANT:

Mr…

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.

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Details

AGLC: RADLEY & RADLEY [2013] FamCA 346
Case: [2013] FamCA 346
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, Mr Radley (the applicant father) and Ms Radley (the respondent mother) brought proceedings concerning their three children. The dispute involved orders regarding the children's living arrangements, parental responsibility, and time spent with each parent, including the mother's desire to relocate with the children.

The court was required to determine several key issues. These included the appropriate allocation of parental responsibility, given the father's history of family violence and the presumption of equal shared parental responsibility not applying. The court also had to consider the children's best interests in relation to spending time with the father, the mother's proposed relocation, and the impact of family violence on the parties' ability to communicate and co-parent. The court also had to evaluate the evidence of a Family Consultant and decide whether to adopt their recommendations.

The court found, on the balance of probabilities, that the father had perpetrated family violence against the mother throughout their relationship, supported by convictions for assault and granted injunctions. The court acknowledged the father's voluntary engagement in rehabilitation programs for alcohol use and behaviour, and his progress in supervised contact with the children. However, the court rejected the Family Consultant's recommendation for no contact, applying the principles from *Bostoi & Bostoi* and *Whipp & Richards* that such evidence must be evaluated and not uncritically adopted. The court determined that the children would benefit from ongoing meaningful relationships with both parents, but that the mother should have sole parental responsibility due to the family violence. The mother was permitted to relocate, but was restrained from moving the children more than 325 kilometres from Sydney.

The court made orders discharging all former orders relating to the children. The mother was granted sole parental responsibility, and the children were to live with her. The mother was restrained from relocating the children's residence outside a 325-kilometre radius from the Sydney city post office. Supervised time with the father was ordered to commence, gradually increasing in duration and decreasing in supervision levels over time, subject to the father's compliance with various conditions, including abstaining from alcohol. The father was also restrained from approaching the mother's residence or the children's schools. Provisions were made for communication between the children and both parents, including telephone contact and the exchange of letters.

Orders