Ramsay and Wade - [2012] FMCAfam 1436

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAMSAY & WADE

[2012] FMCAfam 1436

FAMILY LAW – Children – parenting – parenting orders – interim orders – best interests of the children – family violence order – substance abuse issues – allegations of abuse of one of the children by a cousin – supervision of time with children.

Family Law Act 1975, ss.4, 4AB, 60CA, 60CC, 61DA, 61DB, 65DAA, 67Z, 67ZBA, 67ZBB, 68B
Family Law Regulations 1984 (Cth) Sch.8, reg.12BB
Crimes (Domestic and Personal Violence) Act 2007 NSW s.16

B and B (1993) FLC 92-357
In the Marriage of Bieganski (1993) 16 Fam LR 353

Applicant:

MR RAMSAY

Respondent:

MS WADE

File Number:

SYC 5648 of 2012

Judgment of:

Scarlett FM

Hearing date:

10 December 2012

Date of Last Submission:

10 December 2012

Delivered at:

Sydney

Delivered on:

19 December 2012

REPRESENTATION

Solicitor for the Applicant:

Ms Deo

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondent:

Ms Obradovic

Solicitors for the Respondent:

Navarro & Associates

Independent Children’s Lawyer:

Mrs Court

Solicitors for the Independent Children’s Lawyer:

John Spence & Associates

ORDERS

UNTIL FURTHER ORDER

All previous parenting Orders are discharged.
The Respondent Mother is to have sole parental responsibility for the children of the marriage [X] born [in] 2008 and [Y] born [in] 2010.
The children [X] and [Y] are to live with the Mother.
The Applicant and the Respondent are to keep each other advised at all times of their residential address, residential telephone number and an emergency contact telephone number.
The Applicant and the Respondent are to inform each other of any change to their telephone numbers within twenty-four (24) hours of such change.
The children [X] and [Y] are to spend time with the Father at the home of the Father’s parents:
(a)Each Wednesday from 4:00pm until 7:30pm;
(b)Each Sunday from 9:00am until 11:30am;
(c)On Christmas Day 2012 from 9:00am until 11:30am;
(d)On Father’s Day from 9:00am until 11:30am: and
(e)At such other times as the parties shall agree.
The time spent by the Father with the children [X] and [Y] in accordance with Order (6) above is subject to the following conditions:
(a)All times are to be under the direct supervision of the paternal grandmother MRS R on her consenting in writing to observe all of the requirements of these Orders;
(b)The children are not to be brought into contact with their cousin [Z] at any time;
(c)The Father is not to consume any alcoholic drink at any time when he is spending time with the children or for twenty-four (24) hours beforehand;
(d)The Father is not to administer to himself any prohibited drug at any time when he is spending time with the children or for twenty-four (24) hours beforehand.
(e)The Father must submit for chain of custody urinalysis upon request by the Independent Children’s Lawyer as follows:
(i)on no fewer than two (2) occasions in each month including on weekends as randomly nominated by the Independent Children’s Lawyer;
(ii)under supervision;
(iii)such testing is…

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 Ramsay and Wade

Details

AGLC: Ramsay and Wade [2012] FMCAfam 1436
Case: [2012] FMCAfam 1436
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court, the matter of Ramsay v Wade was heard by Scarlett FM, who delivered the judgment on 19 December 2012. The Applicant, Mr Ramsay, sought interim parenting orders in respect of his two children with the Respondent, Ms Wade. The children currently lived with their mother. The Father filed an application for parenting and property orders, seeking interim orders for equal shared parental responsibility and specified time with the children. The Mother opposed these orders and sought a range of orders, including restrictions on the Father's contact with the children, and an injunction under section 68B of the Family Law Act 1975 restraining the Father from assaulting, molesting, harassing, threatening or otherwise interfering with her, the children, the children's maternal grandparents or their maternal uncle. The Mother also sought orders restraining him from intimidating or stalking herself and these other people, going within 50 metres of her residence or place of work, approaching her within 12 hours of consuming alcohol, damaging her property and other matters.

The court considered the relevant law, including the need to protect the children from physical or psychological harm and the matters set out in subsections 60CC(2) and (3) of the Act. The court also considered the need to take action under subsection 67ZBB(2) as soon as practicable after the notice is filed and, if appropriate, within 8 weeks after the notice is filed. The court made orders by consent on 5th November 2012 restraining the Father from consuming alcohol or using prohibited drugs during or for 12 hours before spending time with the children; directed the parties to attend a Child Dispute Conference with a Family Consultant on 5th November; appointed an Independent Children's Lawyer on 7th November; and heard an application for interim parenting orders on 10th December.

The court concluded that the Father's drug and alcohol issues were a concern and the court must take a cautious approach to ensure the safety of the children. There should be a prohibition on the Father consuming alcohol or using any prohibited drug when he is spending time with the children, but the restriction should operate for a period of 24 hours beforehand, rather than the previous 12 hours to which the Father consented. In addition, the Father must submit himself to chain of custody urinalysis on no fewer than two occasions each month, at times randomly selected by the Independent Children's Lawyer. The court also concluded that a ban on the children being brought into contact with the alleged perpetrator, the cousin, would appear to be a suitable way of protecting the child from harm.

The court ordered that the Respondent Mother is to have sole parental responsibility for the children of the marriage. The children are to live with the Mother. The Applicant and the Respondent are to keep each other advised at all times of their residential address, residential telephone number and an emergency contact telephone number. The Applicant and the Respondent are to inform each other of any change to their telephone numbers within twenty-four (24) hours of such change. The children are to spend time with the Father at the home of the Father’s parents, subject to certain conditions, including supervision by the paternal grandmother. The children are not to be brought into contact with their cousin at any time. The Father is not to consume any alcoholic drink at any time when he is spending time with the children or for twenty-four (24) hours beforehand. The Father is not to administer to himself any prohibited drug at any time when he is spending time with the children or for twenty-four (24) hours beforehand. The Father must submit for chain of custody urinalysis upon request by the Independent Children’s Lawyer as follows: on no fewer than two (2) occasions in each month including on weekends as randomly nominated by the Independent Children’s Lawyer; under supervision; such testing is to take place on the same days as the request is made by the Independent Children’s Lawyer; the urinalysis testing is to be conducted in accordance with the Australian/New Zealand Standard 4308:2008: Procedure for the collection, detection and quantitation of drugs of abuse in urine; the Father must forward a copy of each urinalysis test result to the Independent Children’s Lawyer and the Mother’s lawyers within forty-eight (48) hours of his receipt of the test result; and the Father must pay for the testing. The consent in writing to be signed by the paternal grandmother must refer specifically to the conditions on supervision set out in Order (7) above. The arrangements in Order (7) above will not come into force until the form of consent referred to in Order (8) above is filed at the Court and sealed copies are served on the solicitor for the Respondent and the Independent Children’s Lawyer.

The court certified that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Scarlett FM.

Orders