Rickett and Gull - [2009] FamCA 805

FAMILY COURT OF AUSTRALIA

RICKETT & GULL

[2009] FamCA 805

FAMILY LAW – Children – With whom a child spends time

Family Law Act 1975 (Cth)

C v C (1996) FLC 92-651
Dicosta & Dicosta [2008] FamCAFC 161
Goode v Goode (2006) FLC 93-286

APPLICANT:

Ms Rickett

RESPONDENT:

Mr Gull

FILE NUMBER:

BRC

7914

2007

DATE DELIVERED:

10 AUGUST 2009

PLACE DELIVERED:

BRISBANE

PLACE HEARD:

BRISBANE

JUDGMENT OF:

MURPHY J

HEARING DATE:

10 AUGUST 2009

REPRESENTATION

THE APPLICANT:

In person

THE RESPONDENT:

In person

Orders

The hearing of the parenting application is set down for a First Day of Hearing before Justice Murphy at 2.15pm on 12 November 2009 in the Brisbane Registry of the Family Court of Australia.
Pursuant to s 11F of the Family Law Act 1975 all parties must attend:
(a)an Intake Event for the Child Responsive Program at 11.00am on 26 August 2009.
(b)all future appointments fixed by the Family Consultant and are requested to ensure that the child … born … December 2004 attend all meetings as instructed by the Family Consultant.
Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties and the Court.
For the purpose of preparing the abovementioned issues assessment, the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).

IT IS ORDERED UNTIL FURTHER ORDER THAT

The child … born … December 2004 live with the mother.
Ms KN is released from an Undertaking made by her in respect of supervision of time between the father and the child.
The child spend time with the father:
(a)For 3 nights in one week from 5.00pm Thursday night to 5.00pm Sunday night, and each alternate week thereafter;
(b)For 1 night in the following week from 5.00pm Thursday night to 5.00pm Friday night, and each alternate week thereafter.
In addition to the time provided for in the above Order, the father shall spend time with the child for one extended period of 5 nights in a week in which the child would otherwise spend time with her father for a period of 3 nights in accordance with the above Order.
The father and the mother shall have telephone communication with the child at a time suitable to the parties between the hours of 5.00pm and 7.00pm on those nights when the child is not otherwise spending time with them, and they shall do all such things as might be necessary so as to facilitate such telephone communication.

IT IS FURTHER ORDERED THAT

The costs of both parties of today are reserved.
The further hearing of the property application be adjourned for mention before Justice Murphy at 9.30am on 2 March 2010 in the Brisbane Registry of the Family Court of Australia.
Should the adjourned mention date of 2 March 2010 not be required, the parties…

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 Rickett and Gull

Details

AGLC: Rickett and Gull [2009] FamCA 805
Case: [2009] FamCA 805
Decision Date: 10 August 2009

CaseChat Overview and Summary

In the Family Court of Australia, Justice Murphy presided over proceedings involving Rickett and Gull concerning a parenting application. The dispute centred on arrangements for the child born in December 2004.

The court was required to determine interim parenting orders regarding the child's living arrangements and time spent with each parent. Additionally, the court needed to address the process for assessing the child's and parents' issues, including the role of a Family Consultant, and to set a date for a further hearing of the parenting application. The court also considered the property application, adjourning it for a future mention.

Justice Murphy made orders for the child to live with the mother and for the father to spend time with the child on a specified roster, including an extended period. The father was released from a previous undertaking regarding supervision of his time with the child. The court also ordered both parents to facilitate telephone communication with the child on nights when the child was not with them. Furthermore, the court mandated attendance at an Intake Event for the Child Responsive Program and all future appointments with a Family Consultant, who was empowered to provide an assessment to the parties and the court. The court also included a Fact Sheet detailing the obligations and consequences of contravening the orders. The costs of both parties were reserved, and the property application was adjourned.

Orders

Orders of the court

The hearing of the parenting application is set down for a First Day of Hearing before Justice Murphy at 2.15pm on 12 November 2009 in the Brisbane Registry of the Family Court of Australia.

Pursuant to s 11F of the Family Law Act 1975 all parties must attend:

(a) an Intake Event for the Child Responsive Program at 11.00am on 26 August 2009.

(b) all future appointments fixed by the Family Consultant and are requested to ensure that the child … born … December 2004 attend all meetings as instructed by the Family Consultant.

Following the conclusion of the meeting/s with the Family Consultant the Family Consultant provide a Children and Parents Issues Assessment to the parties and the Court.

For the purpose of preparing the abovementioned issues assessment, the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party or the Independent Children’s Lawyer (if any).

IT IS ORDERED UNTIL FURTHER ORDER THAT

The child … born … December 2004 live with the mother.

Ms KN is released from an Undertaking made by her in respect of supervision of time between the father and the child.

The child spend time with the father:

(a) For 3 nights in one week from 5.00pm Thursday night to 5.00pm Sunday night, and each alternate week thereafter;

(b) For 1 night in the following week from 5.00pm Thursday night to 5.00pm Friday night, and each alternate week thereafter.

In addition to the time provided for in the above Order, the father shall spend time with the child for one extended period of 5 nights in a week in which the child would otherwise spend time with her father for a period of 3 nights in accordance with the above Order.

The father and the mother shall have telephone communication with the child at a time suitable to the parties between the hours of 5.00pm and 7.00pm on those nights when the child is not otherwise spending time with them, and they shall do all such things as might be necessary so as to facilitate such telephone communication.

IT IS FURTHER ORDERED THAT

10.

The costs of both parties of today are reserved.

11.

The further hearing of the property application be adjourned for mention before Justice Murphy at 9.30am on 2 March 2010 in the Brisbane Registry of the Family Court of Australia.

12.

Should the adjourned mention date of 2 March 2010 not be required, the parties shall notify the Associate to Justice Murphy, by jointly signed email, by 4.00pm on 26 February 2010 and the hearing shall be vacated with orders being made in chambers and no appearance necessary by either party.

13.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto 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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