Ratten and Ratten and Ors - [2021] FCCA 1496

FEDERAL CIRCUIT COURT OF AUSTRALIA

RATTEN & RATTEN & ORS

[2021] FCCA 1496

Catchwords:
FAMILY LAW – Parenting – final orders – young child aged 3 years – where the child lives with the maternal grandmother and the maternal grandmother is the primary carer – where the mother and father have not participated in the proceedings and pose a risk of harm to the child – what time the maternal great grandmother should spend with the child – best interests of the child to live with maternal grandmother and spend holiday time with the maternal great grandmother in accordance with a graduated regime.

Legislation:

Family Law Act 1975 (Cth) Pt VII

Cases cited:

Goode & Goode (2006) FLC 93-286

Potts & Bims [2007] FamCA 394

Applicant:

MS RATTEN

First Respondent:

MS B RATTEN

Second Respondent:

MR CARRICK

Third Respondent:

MS C RATTEN

File Number:

NCC 2236 of 2019

Judgment of:

Judge Betts

Hearing date:

19 May 2021

Date of Last Submission:

19 May 2021

Delivered at:

Newcastle

Delivered on:

19 May 2021

REPRESENTATION

Solicitors for the Applicant:

Ann Legal

Counsel for the First and Second Respondent:

No appearance

Counsel for the third Respondent:

In person

ORDERS

The Maternal Grandmother have sole parental responsibility for the child X born in 2017 (“the child”).
The child live with the Maternal Grandmother.
The child spend time with each of the parents as agreed in writing between the Maternal Grandmother and that parent and on such terms and conditions as the Maternal Grandmother sees fit. This may include (but is not limited to) a supervision requirement or that the visits occur in a public location.
The Maternal Great Grandmother spend time with the child as agreed in writing with the Maternal Grandmother and failing agreement as follows:
(a)From 10.00am to 2.00pm tomorrow 20 May 2021, with the Maternal Grandmother to be present during this time;
(b)For 2 hours on Friday 21 May 2021, failing agreement from 9.00am to 11.00am, with the Maternal Grandmother to be present during this time;
(c)During the 2021 June/July school holidays for the last weekend of the holidays on Friday, Saturday and Sunday from 10.00am to 4.00pm, with the Maternal Grandmother to be present during the first visit NOTING that if the child is distressed on either of the last two visits, the Maternal Great Grandmother is to contact the Maternal Grandmother to seek her assistance;
(d)During the 2021 September/October school holidays for the last weekend of the holidays on Friday, Saturday and Sunday from 10.00am to 6.00pm;
(e)During the 2021 Christmas school holidays for the last weekend of the holidays on Thursday, Friday, Saturday and Sunday from 10.00am to 6.00pm;
(f)During the 2022 term 1, 2 and 3 school holidays for the last weekend of the holidays on Thursday, Friday, Saturday and Sunday from 10.00am to 6.00pm;
(g)During the 2022 Christmas school holidays for the last weekend of the holidays on Wednesday, Thursday, Friday, Saturday and Sunday from 10.00am to 6.00pm;
(h)During the 2023 term 1, 2 and 3…

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 Ratten and Ratten and Ors

Details

AGLC: Ratten and Ratten and Ors [2021] FCCA 1496
Case: [2021] FCCA 1496
Decision Date: 19 May 2021

CaseChat Overview and Summary

This matter concerned an application before Judge Betts regarding the parental responsibility and living arrangements for a child, X, born in 2017. The primary dispute involved the child's parents and the child's maternal grandmother, with the maternal great grandmother also participating in the proceedings. The court was tasked with determining the best interests of the child in light of the circumstances presented.

The central legal issues before the court were to determine who should have sole parental responsibility for the child, where the child should live, and the nature and extent of the time the child should spend with each of the parents and the maternal great grandmother. Additionally, the court was required to consider appropriate orders to ensure the child's welfare and to prevent harmful interactions, including injunctions against denigration and the display of court documents to the child.

In reaching its decision, the court applied the principles of the *Family Law Act 1975*, focusing on the paramount consideration of the child's best interests. Judge Betts ordered that the maternal grandmother have sole parental responsibility for the child and that the child live with her. The court stipulated that time spent between the child and each parent would be at the maternal grandmother's discretion, subject to written agreement and any conditions she deemed necessary, such as supervision or public meeting places. The maternal great grandmother was granted specific, phased-in time with the child, with increasing independence and duration over several years, often with a requirement for the maternal grandmother's presence in the initial stages. The court also issued injunctions restraining denigration of parties or family members in the child's presence, the showing of court documents to the child, and specifically restrained the mother and father from spending time with the child except as ordered, and the maternal great grandmother from permitting parents to spend time with the child outside of these orders.

Orders

Orders of the court

The Maternal Grandmother have sole parental responsibility for the child X born in 2017 (“the child”).

The child live with the Maternal Grandmother.

The child spend time with each of the parents as agreed in writing between the Maternal Grandmother and that parent and on such terms and conditions as the Maternal Grandmother sees fit. This may include (but is not limited to) a supervision requirement or that the visits occur in a public location.

The Maternal Great Grandmother spend time with the child as agreed in writing with the Maternal Grandmother and failing agreement as follows:

(a) From 10.00am to 2.00pm tomorrow 20 May 2021, with the Maternal Grandmother to be present during this time;

(b) For 2 hours on Friday 21 May 2021, failing agreement from 9.00am to 11.00am, with the Maternal Grandmother to be present during this time;

(c) During the 2021 June/July school holidays for the last weekend of the holidays on Friday, Saturday and Sunday from 10.00am to 4.00pm, with the Maternal Grandmother to be present during the first visit NOTING that if the child is distressed on either of the last two visits, the Maternal Great Grandmother is to contact the Maternal Grandmother to seek her assistance;

(d) During the 2021 September/October school holidays for the last weekend of the holidays on Friday, Saturday and Sunday from 10.00am to 6.00pm;

(e) During the 2021 Christmas school holidays for the last weekend of the holidays on Thursday, Friday, Saturday and Sunday from 10.00am to 6.00pm;

(f) During the 2022 term 1, 2 and 3 school holidays for the last weekend of the holidays on Thursday, Friday, Saturday and Sunday from 10.00am to 6.00pm;

(g) During the 2022 Christmas school holidays for the last weekend of the holidays on Wednesday, Thursday, Friday, Saturday and Sunday from 10.00am to 6.00pm;

(h) During the 2023 term 1, 2 and 3 school holidays for the last weekend of the holidays on Wednesday, Thursday and Friday from 10.00am to 6.00pm and from 10.00am Saturday to 6.00pm Sunday;

(i) During the 2023 Christmas school holidays for the last weekend of the holidays on Wednesday and Thursday from 10.00am to 6.00pm and from 10.00am Friday to 6.00pm Sunday;

(j) During the 2024 term 1, 2 and 3 school holidays for the last weekend of the holidays on Wednesday from 10.00am to 6.00pm, from Thursday 10.00am to 6.00pm Saturday and from 10.00am to 6.00pm Sunday;

(k) During the 2024 Christmas school holidays and all school holidays thereafter for the last weekend of the holidays from 10.00am Wednesday to 6.00pm Sunday NOTING that if the Maternal Grandmother and the Maternal Great Grandmother agree, then the time can instead run from 10.00am Tuesday until 6.00pm Saturday.

The Maternal Great Grandmother communicate with the child by FaceTime at all reasonable times.

Without admissions, pursuant to section 68B of the Family Law Act 1975, the parties be restrained by injunction from:

(a) Denigrating any other party or members of any other party’s family or household, in the child’s hearing or presence, or enabling the child to remain in the hearing of anyone else engaging in such denigration;

(b) Showing the child any court documents;

(d) The Father is restrained from spending time with the child except in accordance with these orders;

(e) The Maternal Great Grandmother is restrained from permitting either of the parents to spend time with the child except in accordance with these orders.

The proceedings be removed from the list of Active Pending Cases.

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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