Ralton & Ralton - [2016] FCCA 1832

FEDERAL CIRCUIT COURT OF AUSTRALIA

RALTON & RALTON

[2016] FCCA 1832

Catchwords:
FAMILY LAW – Children – residence and contact – sole parental responsibility – bests interests of children – no matters of principle.

Legislation:

Family Law Act 1975, ss.60CC, 65DAA

Applicant:

MR RALTON

Respondent:

MS RALTON

File Number:

MLC 10904 of 2009

Judgment of:

Judge Riethmuller

Hearing dates:

11, 12, 13 April & 9, 12, 13, 27 May 2016

Date of Last Submission:

27 May 2016

Delivered at:

Melbourne

Delivered on:

17 June 2016

REPRESENTATION

Counsel for the Applicant:

Ms Paterson

Solicitors for the Applicant:

Perry Weston Lawyers

The Respondent appeared In Person

Counsel for the Independent Children's Lawyer:

Mr McLeod

Solicitors for the Independent Children's Lawyer:

Ebejer & Associates

ORDERS

All previous orders be discharged.
The father have sole parental responsibility for X born (omitted) 2007 and Y born (omitted) 2009 (“the children”) PROVIDED ALWAYS THAT the father keep the mother informed of significant long term decisions that he makes in relation to the children and actively seeks the mother’s input on such issues.
For the purpose of order 2 hereof:-
(a)before any such long term decisions are made in respect of the children:-
(i)the father shall advise the mother by email of his proposal relating to the children; and
(ii)if the mother wishes to comment on the father’s proposal (or if the mother has any proposal she wishes to make relating to the children on this issue) she shall, within seven (7) days after the date of the father’s email, advise the father by one email (to the email address from which the father sent his communication) of his views;
(iii)upon receipt of any comment or proposal by the mother, the father shall give consideration to the mother’s views;
(iv)after the father has considered the mother’s comments, he shall make a decision and advise the mother by email or SMS text message of the outcome immediately after making that decision; and
(v)if the mother does not respond by email as provided in order 4(a)(ii) hereof, the father shall be entitled to presume that the mother does not wish to be involved and he may decide the issue.
The children live with the father.
The father be permitted to forthwith enrol the children in (omitted) Primary School.
The children attend school at (omitted) Primary School for the balance of 2016.
The mother, her servants and/or agents be and are hereby restrained by injunction from contacting the children by any means otherwise than as provided for in these orders; from the date of these orders until 16 January 2017; and during this period of time the mother, her servants and/or agents be and are hereby restrained from attending the school which the children may attend, or from making any contact with the children by any means.
The mother and father enrol at the Children’s Contact Centre nearest to the mother for supervised time.
The mother spend time with the children as follows:
(a)For two hours, supervised, on Y’s…

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 Ralton & Ralton

Details

AGLC: Ralton and Ralton [2016] FCCA 1832
Case: [2016] FCCA 1832
Decision Date: 17 June 2016

CaseChat Overview and Summary

This matter concerned an application by the father for parenting orders regarding two children, X and Y. The dispute revolved around the primary care and responsibility for the children, as well as the nature and extent of the mother's future involvement with them. The case was heard by Judge Riethmuller.

The court was required to determine who should have sole parental responsibility for the children, where the children should live, and the specific arrangements for the children's time with each parent. Additionally, the court needed to consider the terms of any injunctions against the mother's contact with the children and the school, and to make orders regarding counselling and programs for the parents and children.

Judge Riethmuller ordered that the father have sole parental responsibility for the children, with the proviso that he must keep the mother informed of and seek her input on significant long-term decisions. The children were ordered to live with the father and to be enrolled at a specific primary school. The mother was restrained by injunction from contacting the children or attending their school until January 2017, with specific exceptions. The orders then detailed a phased approach to the mother's future time with the children, commencing with supervised contact and progressing to unsupervised time, including half of all school holidays. The court also made extensive orders for counselling and programs for both parents and the children, and for the Independent Children's Lawyer to explain the orders to the children.

Orders

Orders of the court

All previous orders be discharged.

The father have sole parental responsibility for X born (omitted) 2007 and Y born (omitted) 2009 (“the children”) PROVIDED ALWAYS THAT the father keep the mother informed of significant long term decisions that he makes in relation to the children and actively seeks the mother’s input on such issues.

For the purpose of order 2 hereof:-

(a) before any such long term decisions are made in respect of the children:-

(i) the father shall advise the mother by email of his proposal relating to the children; and

(ii) if the mother wishes to comment on the father’s proposal (or if the mother has any proposal she wishes to make relating to the children on this issue) she shall, within seven (7) days after the date of the father’s email, advise the father by one email (to the email address from which the father sent his communication) of his views;

(iii) upon receipt of any comment or proposal by the mother, the father shall give consideration to the mother’s views;

(iv) after the father has considered the mother’s comments, he shall make a decision and advise the mother by email or SMS text message of the outcome immediately after making that decision; and

(v) if the mother does not respond by email as provided in order 4(a)(ii) hereof, the father shall be entitled to presume that the mother does not wish to be involved and he may decide the issue.

The children live with the father.

The father be permitted to forthwith enrol the children in (omitted) Primary School.

The children attend school at (omitted) Primary School for the balance of 2016.

The mother, her servants and/or agents be and are hereby restrained by injunction from contacting the children by any means otherwise than as provided for in these orders; from the date of these orders until 16 January 2017; and during this period of time the mother, her servants and/or agents be and are hereby restrained from attending the school which the children may attend, or from making any contact with the children by any means.

The mother and father enrol at the Children’s Contact Centre nearest to the mother for supervised time.

The mother spend time with the children as follows:

(a) For two hours, supervised, on Y’s birthday (or the closest date thereto as the Contact Centre can accommodate);

(b) For four hours on Christmas Day, provided such time is supervised by her father;

(c) Commencing 1 December 2016 until 15 January 2017, fortnightly for two hours, supervised at the Contact Centre at such times and dates nominated by the Contact Centre;

(d) Thereafter, each alternate Sunday for four hours, unsupervised, for a period of 6 visits.

10.

At the conclusion of time spent pursuant to paragraph 8(d), the mother spend time with the children as follows:

(a) Each alternate weekend from after school on Friday until the commencement of school on Monday; and

(b) Half of all school holidays.

11.

The Independent Children’s Lawyer have liberty to apply.

12.

The father and Ms G attend further counselling with Ms L at the Family Law Parenting Centre (contact (omitted)), and the father and Ms G follow all reasonable recommendations of Ms L.

13.

The father attends a Tuning into Kids Program (contact www.tuningintokids.org.au.or alternatively through an online version of the program at (omitted).

14.

The father attends the ‘Keep Calm and Parent On’ program offered by Lifeworks at their (omitted) location (contact (omitted)).

15.

The children attend further counselling with Ms S at such times and frequency as recommended by Ms S, and the father follow all reasonable recommendations of Ms S.

16.

The mother attend personal family counselling through the Family Mediation Centre (contact (omitted)), or Lifeworks (contact (omitted)), and the mother follow all reasonable recommendations of such counsellor.

17.

The mother be permitted to provide to her counsellor with a copy of the Family Report dated 31 March 2016 and the Reasons for Judgment.

18.

The father be permitted to provide a copy of the Family Report dated 31 March 2016 and the Reasons for Judgment to Ms L, Ms S and any children’s contact centre that assists the family.

19.

The father be permitted to provide a copy of these orders to (omitted) Primary School.

20.

The appointment of the Independent Children’s Lawyer be discharged 12 months from the date of these orders.

21.

These orders and the reasons for them be explained to the children by the Independent Children’s Lawyer and the Family Consultant, and that the handover of the children to the father be facilitated today on such terms as the Family Consultant determines having regard to the reactions of the children.

22.

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.

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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