Ridgely and Stiller - [2014] FCCA 2668

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIDGELY & STILLER

[2014] FCCA 2668

Catchwords:
FAMILY LAW – Parenting – father seeking orders that he have sole parental responsibility for the parties’ 8 year old daughter, she live with him and spend time with the mother on the basis this is the only way the child will have a relationship with both parents as the mother does not support the child’s relationship with him and has a long history of failing to comply with the Court’s orders and preventing the child from spending time with him. The mother opposes the father’s application and seeks that the existing living arrangements continue whereby the child lives with her and spends alternate weekends and half of school holidays with the father as she now realises the importance of the child having a relationship with the father and she will comply with all orders for the child to spend time with the father. The Independent Children’s Lawyer and report writer support the father’s application. Found: mother does not accept the importance of the child having a relationship with the father and the only way the child will be able to have a relationship with both parents is if she lives with the father. Orders made for the father to have sole parental responsibility for the child, for the child to live with the father and spend significant and substantial time with the mother.

Legislation:

Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DAA

AMS v AIF (1999) 199 CLR 160
U & U (2002) 211 CLR 238
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346

Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92

Applicant:

MR RIDGELY

Respondent:

MS STILLER

File Number:

MLC 1440 of 2008

Judgment of:

Judge Bender

Hearing date:

18 August 2014

Date of Last Submission:

22 August 2014

Delivered at:

Melbourne

Delivered on:

19 November 2014

REPRESENTATION

Counsel for the Applicant:

Mr McIvor

Solicitors for the Applicant:

Ryan Carlisle Thomas

The Respondent appeared in person.

Counsel for the Independent Children’s Lawyer:

Mr Marchetti

Solicitors for the Independent Children’s Lawyer:

David Stagg Tonkin & Co

ORDERS

All previous parenting orders be discharged.
The father have sole parental responsibility in relation to the health and education of the child X born (omitted) 2006 (“X”) and otherwise the parties have equal shared parental responsibility for X.
Notwithstanding Order 2 herein, in exercising sole parental responsibility in relation to X’s health and education, the father must:
(a)consult the mother in relation to any decision to be made about the relevant issue (such consultation to be in writing);
(b)make a genuine effort to come to a joint decision about the issue; and
(c)in the event the parties are unable to come to a joint decision about the issue, notify the mother of any decision relating to the issue within seven days of making such decision.
X live with the father.
X spend time and communicate with the mother as follows:

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 Ridgely and Stiller

Details

AGLC: Ridgely and Stiller [2014] FCCA 2668
Case: [2014] FCCA 2668
Decision Date: 19 November 2014

CaseChat Overview and Summary

In the matter of *Ridgely and Stiller*, heard before Judge Bender, the dispute concerned parenting orders for the child X. The previous parenting orders were discharged, and new arrangements were established regarding X's upbringing and time spent with each parent.

The court was required to determine the extent of parental responsibility for X, particularly concerning her health and education, and to establish a living arrangement and time-sharing schedule for X with both parents. Additionally, the court needed to address practical matters such as school attendance, communication between parents, and the conduct of parents in relation to X and the proceedings.

Judge Bender ordered that the father have sole parental responsibility for X's health and education, subject to a requirement to consult with the mother and make genuine efforts to reach joint decisions. Otherwise, the parties were to have equal shared parental responsibility. X was ordered to live with the father, with specific provisions for X to spend time and communicate with the mother, including detailed arrangements for weekends, school holidays, and significant dates. The court also made orders regarding the suspension of the mother's time in certain circumstances, the facilitation of communication between X and the non-resident parent, and the father's liberty to change X's school. Further orders imposed restrictions on the mother attending X's school, prohibited discussion of the proceedings with X, and restrained parents from denigrating each other in X's presence. The court also mandated the exchange of contact details and the notification of serious illness or injury. Finally, specific directions were given for the immediate explanation of the orders to X and for the notification of relevant parties, including the school principal and medical practitioners.

Orders

Orders of the court

All previous parenting orders be discharged.

The father have sole parental responsibility in relation to the health and education of the child X born (omitted) 2006 (“X”) and otherwise the parties have equal shared parental responsibility for X.

Notwithstanding Order 2 herein, in exercising sole parental responsibility in relation to X’s health and education, the father must:

(a) consult the mother in relation to any decision to be made about the relevant issue (such consultation to be in writing);

(b) make a genuine effort to come to a joint decision about the issue; and

(c) in the event the parties are unable to come to a joint decision about the issue, notify the mother of any decision relating to the issue within seven days of making such decision.

X live with the father.

X spend time and communicate with the mother as follows:

(a) from after school Friday to before school Monday on the weekends commencing 28 November 2014 and 12 December 2014;

(b) on a week about basis in the 2014/2015 long summer vacation commencing 3.00pm 20 December 2014 to 3.00pm the following Saturday and each week thereafter;

(d) for half of each term school holidays as agreed between the parties in writing and failing agreement for the first half from after school on the last day of school term to 3.00pm on the second Saturday;

(e) for one half of the long summer vacation as agreed between the parties in writing or failing agreement as follows:

(i) in 2015/2016 for one period of two weeks and one period of one week with the mother’s two week period to commence 19 December 2015 and the mother’s one week period to commence 16 January 2016;

(ii) for the first three weeks in the 2016/2017 summer vacation and each alternate long summer vacation thereafter;

(iii) for the second three weeks in the 2017/2018 summer vacation and each alternate long summer vacation thereafter.

(f) from 3.00pm Christmas Eve to 3.00pm Christmas Day in 2014 and each alternate year thereafter;

(g) from 3.00pm Christmas Day to 3.00pm Boxing Day in 2015 and each alternate year thereafter;

(h) if X is not otherwise spending time with the mother pursuant to these orders, on X’s birthday if on a school day, from after school to 7.30pm and if on a non-school day, from 10.00am to 2.00pm;

(i) if X is not otherwise spending time with the mother pursuant to these orders on the mother’s birthday, from 5.00pm on the night before the mother’s birthday until 5.00pm on the mother’s birthday;

(j) if X is not otherwise spending time with the mother pursuant to these orders on the Mother’s Day weekend, from 5.00pm the Saturday before Mother’s Day to before school on the Monday after Mother’s Day; and

(k) as otherwise agreed between the parties in writing.

The mother’s time with X pursuant to these orders shall be suspended as follows:

(a) from 3.00pm Christmas Day to 3.00pm Boxing Day 2014 and each alternate year thereafter;

(b) from 3.00pm Christmas Eve to 3.00pm Christmas Day 2015 and each alternate year thereafter; and

The mother’s time pursuant to Order 4(c) herein shall be suspended during the school holidays and recommence on the first weekend of each school term.

Both parties shall facilitate X telephoning the parent she is not with on her reasonable request to do so.

The father is at liberty to remove X from (omitted) Primary School and enrol her in (omitted) Primary School.

10.

The mother is restrained from attending any school attended by X save and except

(a) at the times specified in these orders for the purposes of spending time with X pursuant to Order 5 herein;

(b) if invited to do so by the Principal of the school X is attending; or

(c) with the written consent of the father to enable the mother to attend parent/teacher interviews, school concerts, sporting events or presentation nights.

11.

Any changeover other than at school shall take place in the car park of McDonald’s Family Restaurant, (omitted)(omitted) unless otherwise agreed between the parties in writing.

12.

Each party and their servants and agents are restrained from discussing these proceedings with X and from showing her any documents filed, reports prepared or orders made in these proceedings.

13.

Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of X, and from permitting any other person so to do.

14.

Each party keep the other informed at all times of their current residential address, contact telephone number and email address.

15.

Each party shall advise the other of any serious illness or injury suffered by X as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other parent to obtain information directly from any treating medical practitioners.

16.

The father shall immediately collect X from her school and bring X to meet with the report writer Ms E this day to enable Ms E to explain these orders and the Court’s decision to X.

17.

The Independent Children’s Lawyer shall immediately telephone the Principal of X’s school to advise of the orders made this day and that the father shall be immediately attending at the school to collect X in accordance with Order 16 herein and, if requested by the Principal, is authorised to fax a copy of these orders to the Principal.

18.

The father is authorised to provide a copy of the judgment delivered and orders made this day to:

(a) The Principal of any school attended by X;

(b) X’s treating medical practitioners; and

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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