Ruddock & Robins - [2007] FamCA 1181

FAMILY COURT OF AUSTRALIA

RUDDOCK & ROBINS

[2007] FamCA 1181

FAMILY LAW - APPEAL – Interim parenting orders – Unacceptable risk – Father had pleaded guilty and was convicted of child pornography offences in 2006. The Tasmanian Department of Child and Family Services concluded that he did not pose an ongoing risk to his two children and they returned to live primarily in his care until May 2007 when the mother obtained a restraining order against the father – Upon application by the father, the Federal Magistrate ordered that the children live with the mother three nights per week and the father four nights per week – Mother appealed the Federal Magistrate’s orders and sought that the father have only supervised time with the children on Saturdays because of concerns about the father’s behaviour – Held that it was open to the Federal Magistrate to conclude that the father did not pose an unacceptable risk to the children after considering the Department’s conclusion, the passage of time after the father’s conviction during which the parties agreed that the children live primarily with the father, and the absence of material showing any inappropriate interference by the father of the children – Appeal dismissed

Family Law Act 1975 (Cth)

N and S and the Separate Representative (1996) FLC 92-655; (1995) 19 Fam LR 837
Napier and Hepburn (2006) FLC 93-303; (2006) 36 Fam LR 395

House v The King (1936) 55 CLR 499
Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716; (1979) 5 Fam LR 719
Rice v Asplund (1979) FLC 90-725; (1978) 6 Fam LR 570

APPELLANT:

MS RUDDOCK

RESPONDENT:

MR ROBINS

FILE NUMBER:

LNC

268

2007

APPEAL NUMBER:

2007

DATE DELIVERED:

30 August 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Kay J

HEARING DATE:

30 August 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bishop

SOLICITOR FOR THE APPLICANT:

Bishops Barristers & Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Mills

SOLICITOR FOR THE RESPONDENT:

Kate Mills & Co

ORDERS

The appeal is dismissed.
Order 3 of the orders made by Federal Magistrate Roberts on 20 June 2007 but subsequently stayed pending the outcome of the appeal now be varied by substituting “3 September” for “28 June”, and order 11 of the said orders now be varied by substituting “29 September” for “28 July”.
Each party bear their own costs of the appeal.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: LNC 268 of 2007
APPEAL NUMBER: SA 56 of 2007

MS RUDDOCK

Appellant

And

MR ROBINS

Respondent

REASONS FOR JUDGMENT

This is an appeal against interim orders made by Roberts FM on 20 June 2007. It concerns orders for parenting arrangements for two children, A, born November 1999 and currently seven years of age, and M, born March 2001 and currently six years of age.
The Federal Magistrate’s orders provided for the children to live with the mother each week from after school Friday – I will paraphrase here – until…

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.

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Details

AGLC: Ruddock & Robins [2007] FamCA 1181
Case: [2007] FamCA 1181
Decision Date: 30 August 2007

CaseChat Overview and Summary

The appeal concerned interim parenting orders made by a Federal Magistrate regarding two children. The father had a prior conviction for child pornography offences in 2006. Following an assessment by the Department of Child and Family Services which concluded he did not pose an ongoing risk, the children lived primarily with him until May 2007. At that point, the mother obtained a restraining order. The Federal Magistrate subsequently ordered that the children spend three nights per week with the mother and four nights per week with the father. The mother appealed this decision, seeking only supervised Saturday contact for the father due to her concerns about his behaviour.

The primary legal issue before the court was whether the Federal Magistrate erred in finding that the father did not pose an unacceptable risk to the children, thereby making the interim parenting orders. This involved an assessment of the evidence presented and the application of relevant legal principles concerning the welfare of children and the determination of risk in parenting matters.

Kay J held that it was open to the Federal Magistrate to reach the conclusion that the father did not pose an unacceptable risk. This conclusion was based on a consideration of the Department's assessment, the significant period of time that had elapsed since the father's conviction during which the children had lived primarily with him without apparent issue, and the absence of any material demonstrating inappropriate interference by the father with the children. The court applied the principles established in cases such as *House v The King* and *Gronow v Gronow* regarding the review of discretionary decisions by lower courts, and the paramount consideration of the child's welfare as mandated by the *Family Law Act 1975* (Cth).

The appeal was dismissed.

Orders