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Ramsden & Darnell

Ramsden & Darnell

Case [2023] FedCFamC2F 455 13 March 2023

Parental Responsibility

Best Interests of the Child

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ramsden & Darnell [2023] FedCFamC2F 455

File number(s): NCC 657 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 13 March 2023

Catchwords: FAMILY LAW – parenting – whether to change primary residence for 5 year old child – mother’s inability to act protectively - repeated exposure to family violence – limited parental capacity -failure to meet educational and medical needs – material possibility of risk - co-parenting relationship having improved – equal shared parental responsibility appropriate – change to live with father – change of school - regularised consistent time with mother – meaningful relationships will be promoted – best interests of child .

Legislation:
Evidence Act 1995 (Cth) s 128

Family Law Act 1975 (Cth)

Cases cited:
A v A [1998] FLC 92-800

Berys & Berys [2022] FedCFamC2F 1162

Blinko & Blinko [2015] FamCAFC 146

Director-General, Department of Family and Community Services (New South Wales) v The Colt Children [2013] NSWChC 5

Eastley & Eastley [2022] FedCFamC1A 101

Godfrey & Sanders [2007] FamCA 102

Isles & Nelissen [2022] FedCFamC1A 97

Jones v Dunkel [1959] 101 CLR 298

M & M [1988] 166 CLR 69

Mazorski & Albright [2007] FamCA 520

Medlon & Medlon (No 6) (Indemnity Costs) [2015] FamCAFC 157

MRR v GR [2010] HCA 4

Napier & Hepburn [2006] FamCA 1316

Penfold & Penfold (1980) 144 CLR 311

Russell & Close [1993] FamCA 62

Slater & Light [2011] FamCAFC 1

Sweet & Sweet [2022] FedCFamC2F 676

Whisprun Pty Limited v Dixon [2003] 200 ALR 447

Division: Division 2 Family Law

Number of paragraphs: 181

Date of hearing: 6-8 March 2023

Place: Newcastle

Counsel for the Applicant: Ms Vogel

Solicitor for the Applicant: Umbrella Legal

Solicitor for the Respondent: Mr Predny, Fowler Predny Legal

Counsel for the Independent Children's Lawyer: Mr Willoughby

Solicitor for the Independent Children's Lawyer: Todd Street Lawyer
ORDERS

NCC 657 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS RAMSDEN

Applicant

AND:
MR DARNELL

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE KEARNEY

DATE OF ORDER:

13 MARCH 2023

THE COURT ORDERS THAT:
Parental responsibility
1.Subject to Order 2, the applicant, MS RAMSDEN (‘the mother’) and the respondent, MR DARNELL (‘the father’) will have equal shared parental responsibility for the child, X born in 2017 (‘X’) for decisions about major long-term issues as they relate to X including, but not limited to:
(a)The child’s long-term care, welfare and development;
(b)The child’s education (both current and future);
(c)The child’s religious and cultural upbringing;
(d)The child’s health;
(e)The child’s name; and
(f)Changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

2.At the father’s sole discretion, the father is at liberty to enrol X:
(a)at B School; or
(b)any school for which X may be zoned from time-to-time; or
(c)otherwise subject to a proper exercise of equal shared parental responsibility pursuant to Order 1 herein.

Live with and spend time with orders

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 Ramsden & Darnell

Details

AGLC: Ramsden & Darnell [2023] FedCFamC2F 455
Case: [2023] FedCFamC2F 455
Decision Date

CaseChat Overview and Summary

This case involved a parenting dispute concerning a five-year-old child, X, and the allocation of parental responsibility between the child's mother and father. The parents, MS RAMSDEN (the mother) and MR DARNELL (the father), had separated, and X had been living with her mother. Both parents had engaged in illegal activities and had a history of family violence, but the mother's capacity to act protectively and meet X's needs was found to be limited. The father had limited contact with X but had shown a willingness to become more involved in her life. The Independent Children's Lawyer (ICL) advocated for X to live primarily with the father and for the parents to have equal shared parental responsibility.

The court found that an equal time arrangement between the parents was not in X's best interests due to the mother's inability to act protectively and her limited parental capacity. The court identified several risks to X's wellbeing, including exposure to family violence, poor attendance at school, and a failure to address X's speech impairment. The mother had also breached existing family violence orders, which were intended to protect her and her partner, MR F, from each other. The court concluded that it was in X's best interests for her to live primarily with the father and for her to spend less than substantial and significant time with the mother, while maintaining a meaningful relationship between X and her mother. The court also found it reasonably practicable for the father to have primary care of X and for the parents to have equal shared parental responsibility.

The court made orders for the father to have primary care of X, with the mother spending time with X on alternate weekends and during school holidays. The parents were to have equal shared parental responsibility for major long-term issues relating to X. The court also imposed various injunctive restraints on the parties, including prohibiting the mother from allowing X to come into contact with MR F. The father was ordered to pay a contribution towards the ICL's costs in the sum of $6,406.19, to be paid by fortnightly instalments of $100.

Orders