Ridley and Whittle and Anor - [2011] FMCAfam 985

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RIDLEY & WHITTLE & ANOR

[2011] FMCAfam 985

FAMILY LAW – Parenting orders – seven year old child – application by maternal step-grandmother – grandmother has been primary carer – mother did not participate in proceedings – issues of father’s capacity – religious differences between the parties.

Family Law Act 1975, ss.60B, 60CA, 60CC, 65C

B and B: Family Law Reform Act 1995 (1997) FLC ¶92-755
Connor & Bourke & Anor [2008] FMCAfam 69
“Re Evelyn” (1998) FLC ¶92-807
Rice v Miller (1993) FLC ¶92-415
Dennett & Norman [2007] FamCA 57
McCall & Clark [2009] FamCAFC 92
Mazorski & Albright [2007] FamCA 520
G & C [2006] FamCA 994
Champness & Hanson [2009] FamCAFC 96

Applicant:

MS G RIDLEY

First Respondent:

MR WHITTLE

Second Respondent:

MS K RIDLEY

File number:

DGC 893 of 2010

Judgment of:

McGuire FM

Hearing dates:

18, 19 & 20 July and 2 August 2011

Date of last submission:

2 August 2011

Delivered at:

Dandenong

Delivered on:

16 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr D Kent-Hughes

Solicitors for the Applicant:

Robert Halliday & Associates

Counsel for the First Respondent:

Ms C Jenkins

Solicitors for the First Respondent:

Christopher Woods & Associates

The Second Respondent:

No appearance

Counsel for the Independent Children’s Lawyer:

Mr P O’Connell

Independent Children’s Lawyer:

Ms B Jenkins, Victoria Legal Aid

ORDERS

That the child [X] born [in] 2004 (“[X]”) live with the applicant maternal grandmother.
That the applicant maternal grandmother and the father equally share parenting responsibility for [X].
That [X] spend time with the father as follows:
(a)
each second weekend from after school Thursday until the start

of school on Monday (extending to the start of school on Tuesday in the event of a long weekend) with the father to be responsible for collecting [X] from her school and returning her to her school accordingly;
(b)on each second Monday from after school until 8.00 pm with the father to collect [X] from school and return her to the maternal grandparents’ residence accordingly;
(c)for one half of [X]’s term school holidays as agreed between the maternal grandmother and the father but failing agreement then for the first half of such holidays;
(d)for one half of [X]’s summer school holidays being the first half of the holidays commencing in odd-numbered years and the second half in holidays commencing in even-numbered years;
(e)such other times as may be agreed between the maternal grandmother and the father.
That the time in paragraphs 3(a) and 3(b) hereof be suspended during school holidays.
That in any event [X] spend time with the father each year from 5.00 pm on 24 December until 5.00 pm on 26 December and from 5.00 pm Easter Thursday until 5.00 pm Easter Monday (should term school holidays coincide with Easter it being intended that [X]’s holiday times with the father take in the Easter period).
That in any event [X] shall spend time with the maternal grandparents from 4.00 pm on the day…

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.

Keep reading for free

Create a free CaseChat account to read Ridley and Whittle and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2011] FMCAfam 985
Decision Date: 16 September 2011

CaseChat Overview and Summary

The case of Ridley and Whittle and Anor involved a dispute concerning the parenting arrangements for a child born in 2004, referred to as [X]. The applicant, the maternal grandmother, sought to have [X] live with her and to establish a shared parenting arrangement with the father, while the father contested these arrangements. The court was tasked with determining the living arrangements for [X] and the allocation of parenting responsibilities between the parties.

The court had to resolve several key legal issues, including whether [X] should live with the maternal grandmother, the extent of parenting responsibilities to be shared between the grandmother and the father, and the specifics of the father's visitation rights. Additionally, the court needed to address concerns about the father's use of illicit drugs and the mother's role in [X]'s life. The court also had to decide on the educational arrangements for [X] and the conditions under which the mother could spend time with [X].

The court found that [X] should live with the maternal grandmother and that the grandmother and the father should share equal parenting responsibilities. The detailed visitation schedule for the father included specific times during weekends, school holidays, and special holidays such as Christmas and Easter. The court imposed restrictions on the father's use of illicit drugs and mandated that changeovers occur at the grandmother's home unless otherwise agreed. The mother's visitation was permitted only with the grandmother's consent and under supervision. The court also ruled that [X] should continue her education at [M] School, subject to any written agreement between the grandmother and the father.

The final orders provided a comprehensive parenting plan, ensuring [X]'s welfare and addressing the concerns of all parties involved. The court's decision reflected a balanced approach, considering the best interests of the child while respecting the rights and responsibilities of the grandmother and the father.

Orders

Orders of the court

That the child [X] born [in] 2004 (“[X]”) live with the applicant maternal grandmother.

That the applicant maternal grandmother and the father equally share parenting responsibility for [X].

That [X] spend time with the father as follows:

(a)

each second weekend from after school Thursday until the start

of school on Monday (extending to the start of school on Tuesday in the event of a long weekend) with the father to be responsible for collecting [X] from her school and returning her to her school accordingly;

(b) on each second Monday from after school until 8.00 pm with the father to collect [X] from school and return her to the maternal grandparents’ residence accordingly;

(c) for one half of [X]’s term school holidays as agreed between the maternal grandmother and the father but failing agreement then for the first half of such holidays;

(d) for one half of [X]’s summer school holidays being the first half of the holidays commencing in odd-numbered years and the second half in holidays commencing in even-numbered years;

(e) such other times as may be agreed between the maternal grandmother and the father.

That the time in paragraphs 3(a) and 3(b) hereof be suspended during school holidays.

That in any event [X] spend time with the father each year from 5.00 pm on 24 December until 5.00 pm on 26 December and from 5.00 pm Easter Thursday until 5.00 pm Easter Monday (should term school holidays coincide with Easter it being intended that [X]’s holiday times with the father take in the Easter period).

That in any event [X] shall spend time with the maternal grandparents from 4.00 pm on the day that Eid commences until 9.00 am on the day following Eid in each year.

That the father be and is hereby restrained from using any illicit drug during any period that [X] is in his care and for 12 hours prior to [X] coming into his care.

That for the purposes of the father’s time with [X] pursuant to these orders, all changeovers that do not take place at [X]’s school will occur with the father collecting [X] from the maternal grandmother’s home and returning [X] to that home.

That the mother spend time with [X] only with the agreement of the maternal grandmother and only under the direct supervision of the maternal grandmother or her delegate.

10.

That [X] continue her education at [M] School unless agreed otherwise between the maternal grandmother and the father in writing.

NOTATION:

(A)Paragraph 1 of these orders allows the father to such full involvement in [X]’s education as would normally be permitted a parent including but not limited to the provision by the school of all relevant information and notices and being able to attend at all school events and meetings usually attended by parents.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.