Ramsay and Wade (No.3) - [2014] FCCA 2051

FEDERAL CIRCUIT COURT OF AUSTRALIA

RAMSAY & WADE (No.3)

[2014] FCCA 2051

Catchwords:
FAMILY LAW – Children – parenting orders – interim orders – where substantive parenting Application is part-heard – where children have not spent time with father for six months – best interests of the children – benefit to children in having a meaningful relationship with both parents – need to protect children from physical or psychological harm – urinalysis ordered.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B

Cases cited:
Ramsay & Wade-Ramsay [2012] FMCAfam 1436
Ramsay & Wade-Ramsay [2014] FCCA 1431
Ramsay & Wade (No.2) [2014] FCCA 1989

Applicant:

MR RAMSAY

Respondent:

MS WADE

File Number:

SYC 5648 of 2012

Judgment of:

Judge Scarlett

Hearing dates:

20-22 August 2014

Date of Last Submission:

22 August 2014

Delivered at:

Sydney

Delivered on:

26 August 2014

REPRESENTATION

Solicitor for the Applicant:

Mr Reeve

Solicitors for the Applicant:

Marsdens Law Group

Counsel for the Respondents:

Ms Murphy (direct brief)

Counsel for the Independent Children's Lawyer:

Mr Ladopoulos

Solicitors for the Independent Children's Lawyer:

John Spence & Associates

ORDERS

UNTIL FURTHER ORDER

All previous parenting Orders are discharged.
The mother and the father are to have equal shared parental responsibility for the children [X] born [in] 2008 and [Y] born [in] 2010.
The children [X] and [Y] are to live with the mother.
The children [X] and [Y] are to spend time with the father as follows:
(a)From 10:00 am on Saturday 30 August 2014 until 12 noon on Sunday 31 August 2014;
(b)Commencing on Friday 5 September 2014, on each alternate weekend from the end of school on Friday until the start of school on Monday;
(c)From the end of school until 6:00 pm on:
(i)The father’s birthday [date omitted];
(ii)[X]’s birthday [date omitted]; and
(iii)[Y]’s birthday [date omitted];
(d)During the school holiday period at the end of Term 4 in 2014, unless otherwise agreed between the mother and the father in writing, for two (2) periods of seven (7) consecutive nights commencing at 10:00 am on Saturday 5 January 2015 until 10:00 am on the following Saturday and at 10:00 am on Saturday 19 January 2015 until 10:00 am on the following Saturday; and
(e)At such other times as the mother and father may agree in writing.
For the purposes of facilitating Order (4) above handover shall take place at [X]’s school if occurring at the end or start of a school day and otherwise shall occur at the McDonald’s Family Restaurant at [P].
The mother must take all reasonable steps to ensure that her brother

Mr W is not present at handovers.
The father must ensure that the children are not left in the presence of [N] unless at least one of the following adults is also present:
(a)the father;
(b)the paternal grandmother, Ms R;
(c)the paternal grandfather, Mr R; or
(d)the paternal aunt, Ms N.
The father is restrained from:
(a)consuming any alcoholic drink; and
(b)administering to himself any prohibited drug
at…

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 (No.3)

Details

AGLC: Ramsay and Wade (No.3) [2014] FCCA 1989
Case: [2014] FCCA 2051
Decision Date: 26 August 2014

CaseChat Overview and Summary

In *Ramsay and Wade (No.3)*, Judge Scarlett of the Federal Circuit Court of Australia considered parenting orders concerning two children, [X] born in 2008 and [Y] born in 2010. The dispute involved the arrangements for the children's living situation, time spent with each parent, and various conditions designed to ensure the children's welfare and safety.

The court was required to determine the specific parenting orders that would best serve the interests of the children. This included establishing the primary residence of the children, the quantum and nature of the time the children would spend with the father, and the conditions under which such time would occur. The court also had to address issues relating to the conduct of the parents and other individuals in relation to the children, including restrictions on alcohol and drug consumption by the father, the presence of certain individuals during handovers and time with the children, and the prohibition of denigration of either parent or their families. Furthermore, the court needed to consider the use of a communication book and the father's participation in an anger management course.

Judge Scarlett discharged all previous parenting orders and made new orders reflecting equal shared parental responsibility. The children were ordered to live with the mother, with specific provisions for the father's time with them, including alternate weekends and certain holidays. The orders imposed significant restrictions on both parents, such as the father's abstinence from alcohol and prohibited drugs when with the children, and the mother's obligation to ensure her brother was not present at handovers. The father was also required to submit to urinalysis upon request by the Independent Children's Lawyer and to complete an anger management course. Both parents were restrained from discussing the proceedings or a specific alleged incident with the children and from denigrating each other or their families. The court also mandated the use of a communication book and ordered the parents and children to attend an updated Family Report with Dr L.

Orders

Orders of the court

UNTIL FURTHER ORDER

All previous parenting Orders are discharged.

The mother and the father are to have equal shared parental responsibility for the children [X] born [in] 2008 and [Y] born [in] 2010.

The children [X] and [Y] are to live with the mother.

The children [X] and [Y] are to spend time with the father as follows:

(a) From 10:00 am on Saturday 30 August 2014 until 12 noon on Sunday 31 August 2014;

(b) Commencing on Friday 5 September 2014, on each alternate weekend from the end of school on Friday until the start of school on Monday;

(i) The father’s birthday [date omitted];

(ii) [X]’s birthday [date omitted]; and

(iii) [Y]’s birthday [date omitted];

(d) During the school holiday period at the end of Term 4 in 2014, unless otherwise agreed between the mother and the father in writing, for two (2) periods of seven (7) consecutive nights commencing at 10:00 am on Saturday 5 January 2015 until 10:00 am on the following Saturday and at 10:00 am on Saturday 19 January 2015 until 10:00 am on the following Saturday; and

(e) At such other times as the mother and father may agree in writing.

For the purposes of facilitating Order (4) above handover shall take place at [X]’s school if occurring at the end or start of a school day and otherwise shall occur at the McDonald’s Family Restaurant at [P].

The mother must take all reasonable steps to ensure that her brother

Mr W is not present at handovers.

The father must ensure that the children are not left in the presence of [N] unless at least one of the following adults is also present:

(a) the father;

(b) the paternal grandmother, Ms R;

(d) the paternal aunt, Ms N.

The father is restrained from:

(a) consuming any alcoholic drink; and

(b) administering to himself any prohibited drug

at any time when he is spending time with the children or for the period of twenty-four (24) hours immediately preceding such time.

The father must submit to a chain of custody urinalysis within twenty-four (24) hours of a written request to do so by the Independent Children’s Lawyer, such urinalysis to be:

(a) under supervision;

(b) in accordance with the Australian/New Zealand standard 4308:2008 Procedure for the collection, detection and quantitation of drugs of abuse in urine; and

10.

The mother and father:

(a) are restrained from discussing with the children:

(i) the alleged incident between [X] and his cousin on 22 July 2012; and

(ii) these proceedings; and

(b) must ensure that no other person discusses the matters referred to in subparagraph (a) above, with or in the presence of hearing of the children.

11.

The mother and father are restrained from denigrating each other and/or the members of each other’s family in the presence or hearing of the children and shall ensure that the children are not allowed to remain in the presence or hearing of any other person who is denigrating the parties or their family members.

12.

The mother must notify the father in writing of the details of the school or pre-school and extra-curricular activities which the children attend, such notification to be provided within seventy-two (72) hours of the date of these Orders.

13.

The mother and the father must use a communication book for the purposes of communicating about matters relating to the care and welfare of the children.

14.

The father must enrol in and complete an anger management course at the earliest possible time.

15.

The parties must attend at the rooms of Dr L at a date and time advised by Dr L for the purposes of preparing an updated Family Report and such attendance is to be with the children [X] and [Y].

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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