FAMILY COURT OF AUSTRALIA
| RUSSELL & RUSSELL AND ANOR | [2009] FamCA 28 |
| FAMILY LAW – CHILDREN – with whom child should live - where parents seek their child lives with them – where grandparent seeks child should continue living with her – whether principle established in Rice v Miller (1993) FLC 92-415 against the notion of a presumption of favour of parents operates post 1 July 2006 Part VII amendments to the Family Law Act - where parents submit amendments elevate parents above others – where grandmother submits the Full Court in Dennet and Norman [2007] Fam CA 57 says there is no preference in favour of parents - Dennet and Norman was heard before those amendments took effect – there is no statutorily introduced a presumption in favour of parents – views – risk assessment – emotional and psychological well being – separation of siblings – child to live primarily with parents - parental responsibility – presumption rebutted - as a result of s 61C parental responsibility is conferred upon each of the parents – no order for parental responsibility made |
| Family Law Act 1975 (Cth) ss 60B(1), 60CC, 60CC(3), 61B, 61C, 61DA, 61DB, 62(G), 64A, 64(1)(a), 64B(2), 65DAA, 68L Div 12A, Pt VII Family Law Rules 2004 r 15.5 Family Law Reform Act 1995 ss 60B, 60B(2)(a), 61B, 61C, 65E, 68F, Pt VII |
| Kennedy and Kennedy (1993) FLC 92-400 B v B: Family Law Reform Act (1997) FLC 92-755 |
| APPLICANT: | Mrs Russell |
| RESPONDENTS: | Ms R Russell and Mr Cass |
| FILE NUMBER: | (P)NCC | 12 | of | 2007 |
| DATE DELIVERED: | 22 January 2009 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | The Hon. Justice Ryan |
| HEARING DATES: | 1-4 & 28-30 July 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Hazelwood |
| SOLICITOR FOR THE APPLICANT: | McMahon Broadhurst Glynn |
| COUNSEL FOR THE RESPONDENT: | Mr Davies |
| SOLICITOR FOR THE RESPONDENT: | MacLean & Curtis |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Dr O’Connor |
Orders
That all prior orders are discharged.
Commencing 24 January 2009 the child … born … May 2001 (“the child”) shall live with the mother and the father.
That the child shall spend time with the maternal grandmother as follows:
(a)commencing 4 February 2009 during school term from after school Wednesday until the commencement of school the following Monday and each alternate week thereafter;
(b)commencing the beginning of Term 2…
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- Russell & Russell & Anor [2009] FamCA 28
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- [2009] FamCA 28
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CaseChat Overview and Summary
The court was required to determine the precise terms of the parenting orders, including when the child would live with the mother and father, and the schedule for the child to spend time with the maternal grandmother. This involved establishing a detailed timetable for the maternal grandmother's time with the child, which was to evolve over several years, as well as provisions for communication, school attendance, and parental conduct.
Justice Ryan made detailed orders concerning the child's living arrangements and time with the maternal grandmother, which were to commence from January 2009 and extend through to 2011. These orders included specific provisions for the child to live with both parents, and a progressively structured schedule for time with the maternal grandmother, encompassing school term and holiday periods, as well as arrangements for birthdays and public holidays. The court also made orders restraining the parents from denigrating each other in the child's presence, requiring the father to refrain from using illegal drugs while the child is in his care, and mandating the child's attendance at a specific school until the end of 2009. The orders incorporated a Fact Sheet detailing the obligations and consequences of contravention, and all outstanding applications were dismissed.
Orders
Orders of the court
1.
That all prior orders are discharged.
2.
Commencing 24 January 2009 the child … born … May 2001 (“the child”) shall live with the mother and the father.
3.
That the child shall spend time with the maternal grandmother as follows:
(a) commencing 4 February 2009 during school term from after school Wednesday until the commencement of school the following Monday and each alternate week thereafter;
(b) commencing the beginning of Term 2 in 2009 Order 3(a) is varied so that the maternal grandmother’s time commences on Thursday after school in lieu of Wednesday;
(c) commencing Term 3 in 2009 Order 3(b) is varied so that the maternal grandmother’s time commences on Friday after school in lieu of Thursday;
(d) commencing Term 1 in 2010 Orders 3(a),(b) and (c) are discharged;
(e) commencing Term 1 in 2010 during school term from after school Friday until the commencement of school Monday, on the second weekend after school term commences and each third weekend thereafter;
(f) commencing Term 1 in 2010 during school term from after school until the commencement of school the following day on two separate occasions between each third weekend visit with the maternal grandmother and in the event the parties are unable to agree on the days these visits shall occur they shall occur on the second and third Monday in each period;
(g) commencing Term 1 in 2011 Order 3(f) is varied to one occasion between each third weekend visit with the maternal grandmother and in the event the parties are unable to agree on the days these visits shall occur they shall occur on the second Monday in each period;
(h) for one week in each school holiday period on dates agreed between the parties and failing agreement commencing at 12.00 noon on the second Saturday and ending at 12 noon the following Saturday in each school holiday period;
(i) from 4.00 pm until 6.00 pm on the child’s birthday if the birthday falls on a school day, otherwise from 2.00 pm until 6.00 pm;
(j) from 2.00 pm until 6.00 pm on Christmas Day and Easter Sunday each year; and
(k) at such other times as the parties agree.
4.
That the mother and maternal grandmother shall provide each other with a telephone number upon which each may telephone the child no more frequently than twice during each period the child is in the other’s care.
5.
That the parties are to advise each other within 7 days of any change to their residential address and contact telephone numbers.
6.
The parties are restrained from denigrating the other or any member of their household or family in the presence of the child and shall use their best endeavours to prevent any other person from doing so.
7.
Until the end of Term 4 in 2009 the parents are restrained from withdrawing the child from W Public School.
8.
During school term the maternal grandmother shall collect the child from school at the beginning of her time with the child and return her to the same place.
9.
During school holidays the mother and/or father shall deliver the child to the maternal grandmother’s home at the beginning her time with the child and the maternal grandmother shall return the child to the parent’s home at the end of her time with the child.
10.
The mother shall authorise the child’s school to provide the maternal grandmother, at her request and expense, copies of the child’s school reports and school photograph.
11.
The father is restrained from using illegal drugs whilst the child is in his care.
12.
That pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
13.
That all outstanding applications are dismissed.
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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