Ricketts and Crowe - [2015] FCCA 3629

FEDERAL CIRCUIT COURT OF AUSTRALIA

RICKETTS & CROWE

[2015] FCCA 3629

Catchwords:
FAMILY LAW – Child – neither parent able to care for child – child’s Aboriginal identity – separation of siblings – parenting capacity of proposed caregivers.

Legislation:

Family Law Act 1975, ss.4AA, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA.

Cases cited:
Verran & Hort & Verran [2009] FMCAfam 1
Donnell & Dovey (2010) FLC 93-428

Applicant:

MS RICKETTS

Respondent:

MS CROWE

File Number:

ADC 3042 of 2013

Judgment of:

Judge Kelly

Hearing date:

14-17 September 2015 in Broken Hill

Date of Last Submission:

24 September 2015

Delivered at:

Adelaide

Delivered on:

24 September 2015

REPRESENTATION

Counsel for the Applicant:

Ms A Horvat

Solicitors for the Applicant:

Far West Community

Counsel for the Respondent:

Ms R Dart

Solicitors for the Respondent:

Mark Whelan Lawyers

Counsel for the Independent Children's Lawyer:

Mr P Gutterres

Solicitors for the Independent Children's Lawyer:

Legal Aid New South Wales

ORDERS

Parenting orders regarding the children A, C and B

All previous parenting orders in relation to the children A born (omitted) 2007, C born (omitted) 2008 and B born (omitted) 2011 are discharged.
The children A, C and B live with the maternal grandmother who shall have sole parental responsibility for their care, welfare and development.
The children spend supervised time with their mother and their respective fathers at such times and upon such conditions as may be agreed between the maternal grandmother and each parent, including supervision, if considered necessary for the children’s safety and welfare.
The children spend time with the Applicant, Ms Ricketts at such times as may be agreed between the Applicant and the maternal grandmother.

Parenting orders regarding X born (omitted) 2012

That all previous parenting orders in relation to X are discharged as and from 8 January 2016 and thereafter the following parenting orders apply.
X live with his maternal grandmother Ms Crowe who shall have sole parental responsibility for his care, welfare and development.
The maternal grandmother consult with the applicant Ms Ricketts and seek her views in relation to major decisions regarding X’s health and education.
X spend time with the Applicant, Ms Ricketts as follows:
(a)on each third weekend from 11.30am Friday until 3.00pm Sunday commencing 22 January 2016;
(b)upon X commencing school on one weekend each month during school terms from 4.00pm Friday until 3.00pm Sunday, or such other times as may be agreed;
(c)on any weekend that Ms Ricketts may be present in (omitted), at times to be agreed between the parties.
(d)commencing in 2016 for one half of each of the April, July and September school holidays as agreed between the parties or in default of agreement for the first half of the school holidays from 11.30am on the first Saturday until 3.00pm on the Sunday one week following;
(e)commencing in 2016 for one half of the Christmas school holiday periods each year at times to be agreed between the parties or in default of agreement:
(i)for the second half of the…

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 Ricketts and Crowe

Details

AGLC: Ricketts and Crowe [2015] FCCA 3629
Case: [2015] FCCA 3629
Decision Date: 24 September 2015

CaseChat Overview and Summary

This matter concerned parenting orders made by Judge Kelly in relation to four children: A, C, B, and X. The dispute involved the maternal grandmother, Ms Crowe, and the applicant, Ms Ricketts, as well as the children's mother and respective fathers. The court was required to determine the living arrangements and parental responsibilities for the children, as well as the nature and extent of contact between the children and their parents and Ms Ricketts.

The court was tasked with determining the best interests of the children in light of the circumstances presented. This involved deciding who should have sole parental responsibility for their care, welfare, and development, and establishing specific arrangements for the children to spend time with their mother, fathers, and Ms Ricketts. Furthermore, the court needed to address communication protocols between the parties involved in co-parenting and to consider injunctive orders to ensure the safety and well-being of the children.

Judge Kelly ordered that all previous parenting orders be discharged. For children A, C, and B, the maternal grandmother, Ms Crowe, was granted sole parental responsibility, with the children to live with her. Supervised time with their mother and respective fathers was to be arranged by agreement with Ms Crowe, with supervision if deemed necessary for the children's safety. For child X, Ms Crowe was also granted sole parental responsibility, with the children to live with her. Ms Crowe was directed to consult with Ms Ricketts regarding major decisions about X's health and education. Specific arrangements were then detailed for X to spend time with Ms Ricketts, including regular weekend and holiday contact, with provisions for handover procedures and ongoing communication. The court also made orders regarding co-parenting communication, requiring respectful interactions and the sharing of relevant information. Finally, injunctive orders were made restraining various behaviours, including unsupervised contact with certain individuals, alcohol consumption in the presence of the children, denigration of other parties, exposure to family violence, and discussion of proceedings on social media.

Orders

Orders of the court

Parenting orders regarding the children A, C and B

All previous parenting orders in relation to the children A born (omitted) 2007, C born (omitted) 2008 and B born (omitted) 2011 are discharged.

The children A, C and B live with the maternal grandmother who shall have sole parental responsibility for their care, welfare and development.

The children spend supervised time with their mother and their respective fathers at such times and upon such conditions as may be agreed between the maternal grandmother and each parent, including supervision, if considered necessary for the children’s safety and welfare.

The children spend time with the Applicant, Ms Ricketts at such times as may be agreed between the Applicant and the maternal grandmother.

Parenting orders regarding X born (omitted) 2012

That all previous parenting orders in relation to X are discharged as and from 8 January 2016 and thereafter the following parenting orders apply.

X live with his maternal grandmother Ms Crowe who shall have sole parental responsibility for his care, welfare and development.

The maternal grandmother consult with the applicant Ms Ricketts and seek her views in relation to major decisions regarding X’s health and education.

X spend time with the Applicant, Ms Ricketts as follows:

(a) on each third weekend from 11.30am Friday until 3.00pm Sunday commencing 22 January 2016;

(b) upon X commencing school on one weekend each month during school terms from 4.00pm Friday until 3.00pm Sunday, or such other times as may be agreed;

(d) commencing in 2016 for one half of each of the April, July and September school holidays as agreed between the parties or in default of agreement for the first half of the school holidays from 11.30am on the first Saturday until 3.00pm on the Sunday one week following;

(e) commencing in 2016 for one half of the Christmas school holiday periods each year at times to be agreed between the parties or in default of agreement:

(i) for the second half of the Christmas school holidays in 2016 and each alternate year thereafter;

(ii) for the first of the Christmas school holidays in 2017 and each alternate year thereafter;

(iii) for the purpose of these orders the school holidays are deemed to commence at 9.00am on the first day after the school term concludes and to conclude on the last day before school resumes;

(iv) any handover during the Christmas school holidays shall occur at 3.00pm on the middle day of the school holiday period.

Pending X commencing school, handovers take place with the Applicant Ms Ricketts collecting X from the maternal grandmother at the (omitted) Post Office at the commencement of X’s time in her care and returning him to the maternal grandmother at the (omitted) bus stop at the conclusion of X’s time in her care.

10.

Upon X commencing school, handovers take place as agreed between the parties subject to any further Order of the Court.

11.

The maternal grandmother and the Applicant facilitate regular telephone communication between X and the other party on at least one (1) occasion each week and on specials occasions, including Christmas Day, X’s birthday and each party’s birthday.

12.

X spend supervised time with his mother and father at times as may be agreed between the maternal grandmother and each parent.

Co-parenting communication

13.

The maternal grandmother and the Applicant will:

(a) ensure that all communication between them in the presence of the children is polite and respectful;

(b) ensure that all communication between them in relation to the children is polite and respectful; and

14.

The maternal grandmother shall ensure that the Applicant is kept informed of:

(a) any medical problems or illnesses that X may suffer whilst in her care;

(b) any medication or treatment that is prescribed for X;

(d) the maternal grandmother’s residential address; and

(e) details of any other people who may be living in that home with the maternal grandmother and the children.

15.

The Applicant shall ensure that the maternal grandmother is kept informed of:

(a) any medical problems or illnesses that X may suffer whilst in her care;

(b) any medication or treatment that is prescribed for X;

(d) the Applicant’s residential address; and

(e) details of any other people who may be living in that home with the Applicant and the children.

16.

Both parties are welcome to attend any social, school, sporting or religious functions to which parents are usually invited and to receive or obtain copies of X’s school reports and school photographs (at each party’s own expense).

17.

Both party provide the other with their mobile telephone number provided that any such communication by mobile telephone is also conducted in a polite and respectful manner and that the telephone number is not released to any other person without the consent of the relevant party.

Injunctions

18.

All parties, including the mother and each of the children’s fathers, are restrained from:

(a) allowing the children to have any unsupervised contact with Mr A or Mr C;

(b) consuming alcohol to excess in the presence of the children;

(c) abusing, criticising or denigrating the other parties in the presence of the children and from allowing or encouraging any other person to do so;

(d) allowing the children to be exposed to family violence, including verbal or physical abuse between any extended family members; and

(e) criticising the other parties or discussing any issues raised in these proceedings on Facebook or any other social media website.

19.

The maternal grandmother is restrained from;

(a) being intoxicated in the presence of the children; and

(b) bringing the children into contact or allowing the children to reside with Mr D.

20.

The matter is adjourned to 16 November 2015 at 10.00am in Broken Hill with respect to long term handover arrangements.

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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