RIDLEY & RIDLEY - [2019] FamCA 628

FAMILY COURT OF AUSTRALIA

RIDLEY & RIDLEY

[2018] FamCA 628

FAMILY LAW – CHILDREN – Magellan List – Interim Parenting Orders – With whom the child lives and spends time – Where the subject child is aged nine years – Best interests – Where the applicant father seeks all time between the mother and the child to be suspended or alternatively, supervised – Where the mother, at the interim hearing, proposes for her time with the child to be supervised by the maternal grandparents – Where the mother’s partner has allegedly physically and sexually abused his eldest son of a previous relationship – Where investigations into allegations against the mother’s partner are ongoing – Where the mother provides no evidence of the maternal grandparents’ capacity to supervise time – Where consideration is given to maintaining a meaningful relationship between the mother and the child, but greater weight is given to the safety of the child – Where the mother consents, without admissions, to being restrained from bringing the child into contact or having communication of any kind with her partner – Where orders are made for the mother to spend supervised time with the child every first, fourth, seventh and ninth Saturday during each school term – Where suspension of consent orders made 11 November 2016 providing for the mother to spend defined time with the child – Where the Independent Children’s Lawyer is to meet with the child and explain the content and nature of the orders.

Family Law Act 1975 (Cth), s 60CC

Ridley & Ridley [2015] FamCA 1032

APPLICANT:

Mr Ridley

RESPONDENT:

Ms Ridley

INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitor

FILE NUMBER:

NCC

2245

2012

DATE DELIVERED:

6 September 2019

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATE:

2 September 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Peter Hamilton & Associates

COUNSEL FOR THE RESPONDENT:

Mr Bates

SOLICITOR FOR THE RESPONDENT:

Merridy Elphick Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Not Applicable

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Sharon Moore Solicitor

Orders

Pending further order, the Court orders that

The child M born … 2010 shall spend time with the mother as follows:
1.1On the first, fourth, seventh and ninth Saturday of each school term, with such time to occur in the Newcastle area supervised by Q Group for the maximum time that the service can provide on each occasion.
For the purpose of implementing Order 1:
2.1The parties shall contact Q Group within 7 days to arrange appointment for assessment and to participate in any intake assessment;
2.2The parties shall comply with all reasonable rules of Q Group;
2.3The parties shall comply with all reasonable requests or directions of Q Group;
2.4The father shall deliver the child to and collect the child from the place nominated by Q Group at the commencement and conclusion of time;
2.5The parties will share the costs of the supervision.
With the consent of the mother and without admissions by her…

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 RIDLEY & RIDLEY

Details

AGLC: RIDLEY & RIDLEY [2018] FamCA 628
Case: [2019] FamCA 628
Decision Date: 6 September 2019

CaseChat Overview and Summary

This matter concerned orders made by Cleary J in the Family Court of Australia regarding the parenting arrangements for a child, M. The proceedings involved the child's mother and father, and the court was required to determine the specific terms of M's time with each parent, as well as address certain restrictions and the suspension of previous consent orders.

The court was tasked with determining the practical arrangements for M's time with the mother, including the frequency, duration, and location of this time, and the necessary supervision. Additionally, the court had to consider an application to restrain the mother from permitting M to have contact with a Mr F, and to suspend specific existing consent orders that governed M's time with both parents and holiday arrangements. The court also needed to make provision for the explanation of the new orders to the child and to notify relevant government departments.

Cleary J made orders for M to spend time with the mother on specific Saturdays during school terms, to occur in the Newcastle area under the supervision of Q Group. The parties were directed to engage with Q Group for assessments and to comply with its rules and directions, with the father responsible for delivery and collection. The costs of supervision were to be shared. Crucially, the mother was restrained from permitting M to have contact with Mr F, with this order made by consent and without admissions from the mother. Furthermore, specific previous consent orders detailing extensive time arrangements and holiday schedules were suspended. The court also ordered that an Independent Children's Lawyer meet with M to explain the new orders, and that a copy of the orders and reasons be provided to the Department of Communities and Justice, Child Abuse Unit. The substantive proceedings were listed for mention.

Orders

Orders of the court

Pending further order, the Court orders that

The child M born … 2010 shall spend time with the mother as follows:

1.1 On the first, fourth, seventh and ninth Saturday of each school term, with such time to occur in the Newcastle area supervised by Q Group for the maximum time that the service can provide on each occasion.

For the purpose of implementing Order 1:

2.1 The parties shall contact Q Group within 7 days to arrange appointment for assessment and to participate in any intake assessment;

2.2 The parties shall comply with all reasonable rules of Q Group;

2.3 The parties shall comply with all reasonable requests or directions of Q Group;

2.4 The father shall deliver the child to and collect the child from the place nominated by Q Group at the commencement and conclusion of time;

2.5 The parties will share the costs of the supervision.

With the consent of the mother and without admissions by her of knowledge of any wrongdoing by her partner Mr F, the mother is restrained pursuant to s 68B(1)(a) of the Family Law Act 1975 from permitting the child M born … 2010 to be brought into contact with or have communication of any kind with Mr F born … 1981.

That Orders 5, 6 and 7 of orders made by consent on 11 November 2016 (repeated below) are suspended:

(5) The child will spend time with the mother as follows, or as otherwise agreed in writing:

5.1 During school terms, on the first, fourth, seventh and ninth weekend of such terms from 5.00 pm Friday until 5.00 pm Sunday provided always that the time will be extended to include any pupil free day, staff development day or public holiday that falls either immediately before or after the weekend time commences or concludes, this order to become operative at the commencement of 2017;

5.2 For the Mother’s Day weekend from 5.00 pm Friday to 5.00 pm Sunday provided that in the event that it is not already a weekend when the child is spending time with the mother, this weekend shall be in substitution for the next weekend during which the child would otherwise be spending time with the mother;

5.3 For the entirety of the term 2 school holiday period commencing at 5.00 pm on the last day of the school term and concluding at 5.00 pm two days prior to the child’s first day of school attendance in the new school term;

5.4 For the second half of the term 1 and term 3 school holiday periods from 5.00 pm on the Friday of the first week of the school holiday period until 5.00 pm on the day immediately prior to the commencement of the child’s first day of school attendance in the new school term;

5.5 For half of the term 4 Christmas school holiday periods being:

5.5.1 From 5.00 pm on 16 December 2016 to 5.00 pm on 23 December 2016 and from 5.00 pm on 10 January 2017 to 5.00 pm on 30 January 2017;

5.5.2 Thereafter, for the first half in odd numbered years from 5.00 pm on the last day of the school term until 5.00 pm on the mid-point day of the school holiday period and the second half in even numbered years from 5.00 pm on the mid-point day of the school holiday period until 5.00 pm on the day immediately prior to the first day the child is to commence school in the new school term.

(6) Notwithstanding any other order above the child is to live with the father:

6.1 For the first half of the term 1 and term 3 school holiday periods from 5.00 pm on the last day of the school term until 5.00 pm on the first Friday of the school holiday period;

6.2 For half of the term 4 Christmas school holiday periods being:

6.2.1 From 5.00 pm on 23 December 2016 to 5.00 pm on 10 January 2016 and from 5.00 pm on 30 January 2016 to the commencement of the new school term;

6.2.2 Thereafter, for the first half in even numbered years from 5.00 pm on the last day of the school term until 5.00 pm on the mid-point day of the school holiday periods and the second half in odd numbered years from 5.00 pm on the mid-point day of the school holiday periods until 5.00 pm on the day immediately prior to the first day the child is to commence school in the new school term;

6.2.3 For the Father’s Day weekend from 5.00 pm Friday to 5.00 pm Sunday provided that if the child would otherwise be spending time with the mother then the mother shall spend time with the child on the weekend before the Father’s Day weekend from 5.00 pm Friday to 5.00 pm Sunday.

(7) For the purpose of implementing Order 5 hereof:

In the event of the father residing in Town U

7.1 The father shall cause the delivery and the mother shall cause the collection of the child at the commencement of time spent with the mother at Town G; and

7.2 The mother shall cause the delivery and the father shall cause the collection of the child at the conclusion of time spent with the mother at Town G;

In the event of the father residing in Newcastle

7.3 The father shall cause the delivery and the mother shall cause the collection of the child at the commencement of time spent with the mother at Town H McDonalds; and

7.4 The mother shall cause the delivery and the father shall cause the collection of the child at the conclusion of time spent with the mother at Town H McDonalds.

That the Independent Children’s Lawyer meet with the child at a mutually convenient time for these orders to be explained both as to their content and the fact that they are made pending further order.

The Registrar of the Family Court shall provide a copy of these orders and reasons to the Department of Communities and Justice, reference Child Abuse Unit.

The Court notes that

(A) The substantive proceedings will be listed for mention in the next Magellan List and a separate order will be made to that effect.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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