RUTTLEDGE & RUTTLEDGE - [2014] FamCA 805

FAMILY COURT OF AUSTRALIA

RUTTLEDGE & RUTTLEDGE

[2014] FamCA 805

FAMILY LAW – CHILDREN – With whom the children live and spend time – Whether the children are at risk of emotional harm as a result of their exposure to the significant parental conflict and family violence – Whether the children are at any risk in the mother’s care – Weight to be given to the children’s views in light of their alignment with the father – Whether the father has alienated the children from the mother

Family Law Act 1975 (Cth)

APPLICANT:

Mr Ruttledge

RESPONDENT:

Ms Ruttledge

INDEPENDENT CHILDREN’S LAWYER

Ms Doris Chan, Solicitor

FILE NUMBER:

BRC

13255

2007

DATE DELIVERED:

18 September 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

15 to 17 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Middleton

SOLICITOR FOR THE APPLICANT:

Schultz Toomey O’Brien Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Moore

SOLICITOR FOR THE RESPONDENT:

C Guilfoyle & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Andrew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

It is ordered that:

The Father shall have sole parental responsibility with respect to “major long term issues” as that expression is defined in the Family Law Act 1975 (Cth) in respect of the children, B born … 2002, T born … 2004 and N born … 2005, save that prior to making the sole ultimate decision about any such issue, the Father shall:

(a)        notify the Mother in writing prior to making decisions about any major           long term issues;
(b)      invite the Mother to indicate her views in writing;
(c)      consider, by reference to the best interests of the children, any such     response from the Mother prior to making any such decision; and
(d)      advise the Mother in writing as soon as reasonably practicable of his    ultimate decision.

Notwithstanding the provisions of Order 1 hereof:

(a) the Mother shall be responsible for the daily care, welfare and development of the children when they are living or spending time with her;

(b)the Father shall be responsible for the daily care, welfare and development of the children when they are living or spending time with him.

During the time the children are with either parent, that parent shall:

(a) respect the other parent's privacy and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully and refer to the other parent as "Mum", "Dad", "Mummy" or "Daddy" (to the exclusion of any future partners or step-parents) as the case may be;
(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent to or in the presence of the children;
(d) not use physical discipline upon the children, nor permit any other person to physically discipline the children.

The children live with the Father.

Commencing Friday 26 September 2014…

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 RUTTLEDGE & RUTTLEDGE

Details

AGLC: RUTTLEDGE & RUTTLEDGE [2014] FamCA 805
Case: [2014] FamCA 805
Decision Date: 18 September 2014

CaseChat Overview and Summary

This matter concerned orders made by Kent J regarding the parenting of three children, B, T, and N. The dispute involved the allocation of parental responsibility and time between the Father and the Mother.

The court was required to determine the terms of parenting orders, including who would have sole parental responsibility for major long-term issues, how daily care would be managed, and the specific arrangements for the children spending time with each parent, including during school holidays and special days. The court also needed to address provisions for communication between parents, dispute resolution, and the consequences of contravening the orders.

Kent J made orders that the Father would have sole parental responsibility for major long-term issues, subject to a requirement to notify, invite views from, consider, and advise the Mother in writing of his ultimate decisions. The Mother would be responsible for the children's daily care when they were with her, and the Father when they were with him. The orders detailed specific arrangements for the children to spend time with the Mother on alternate weekends and during school holidays, with provisions for changeovers and communication. The court also included orders regarding respectful communication between parents, the prohibition of physical discipline, and the administration of medication. Furthermore, the orders stipulated a process for resolving disputes, including mandatory family dispute resolution, and outlined the consequences of contravening the orders, referencing relevant sections of the *Family Law Act 1975* (Cth). The children were ordered to live with the Father.

Orders

Orders of the court

It is ordered that:

The Father shall have sole parental responsibility with respect to “major long term issues” as that expression is defined in the Family Law Act 1975 (Cth) in respect of the children, B born … 2002, T born … 2004 and N born … 2005, save that prior to making the sole ultimate decision about any such issue, the Father shall:

(a) notify the Mother in writing prior to making decisions about any major long term issues;

(b) invite the Mother to indicate her views in writing;

(c) consider, by reference to the best interests of the children, any such response from the Mother prior to making any such decision; and

(d) advise the Mother in writing as soon as reasonably practicable of his ultimate decision.

Notwithstanding the provisions of Order 1 hereof:

(a) the Mother shall be responsible for the daily care, welfare and development of the children when they are living or spending time with her;

(b) the Father shall be responsible for the daily care, welfare and development of the children when they are living or spending time with him.

During the time the children are with either parent, that parent shall:

(a) respect the other parent's privacy and not question the children about the personal life of the other parent;

(b) speak of the other parent respectfully and refer to the other parent as "Mum", "Dad", "Mummy" or "Daddy" (to the exclusion of any future partners or step-parents) as the case may be;

(c) not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent to or in the presence of the children;

(d) not use physical discipline upon the children, nor permit any other person to physically discipline the children.

The children live with the Father.

Commencing Friday 26 September 2014 and until the children resume school, the children spend time and communicate with the Mother from 3.00 pm Friday to 9.00 am Monday each alternate weekend with the changeovers to occur, prior to the recommencement of school, at Hungry Jacks, Town P.

Once the children have resumed school, they are to spend time and communicate with the Mother each alternate weekend from after school Friday to before school Monday and for that purpose:

(a) the Mother shall collect the children from school on Friday afternoon;

(b) at conclusion of contact the Mother deliver the children to school;

(c) in the event Friday is a public holiday or a pupil free day, then the Mother shall collect the children from school at 3.00 pm Thursday;

(d) in the event Monday is a public holiday or a pupil free day, then the Mother is to deliver the children to school at 8.30 am Tuesday;

(e) neither parent shall attend changeover time with either their current partner/spouse or any future partner/spouse or that partner’s/spouse's children;

(f) any medications and written doctor's information, instructions and information sheets which the supplying parent shall request from the doctor and pharmacist are to be exchanged at changeover;

(g) no parent shall video or audio tape record any changeover.

All other changeovers shall occur at Hungry Jacks, Town P.

Holidays

The Mother shall spend in odd numbered years the first half of the school holiday period with the children from 9.00 am on the first Saturday of the holidays until 9.00 am on the second Saturday of the holidays and in even numbered years the Mother shall spend the second half of holidays with the children from 9.00 am on the second Saturday of the holidays until 9.00 am on the third Saturday of the holidays.

The Father shall spend in odd numbered years the second half of the school holiday period with the children from 9.00 am on the second Saturday of the holidays until 9.00 am on the third Saturday of the holidays and in even numbered years the Father shall spend the first half of holidays with the children from 9.00 am on the first Saturday of the holidays until 9.00 am on the second Saturday of the holidays.

10.

The school holiday period shall start on Friday of the last week of school at 4.00 pm and end on the last Sunday of the holiday period at 4.00 pm.

Christmas School Holidays

11.

For the Christmas school holidays for 2014 the children shall spend time with the Mother pursuant to Order 8 hereof with changeover to occur at Hungry Jacks, Town P.

12.

The parent that does not have the children in their care for Christmas Day/Boxing Day shall spend time with the children from 12.00 pm Christmas Day to 12.00 pm Boxing Day with handover to occur in front of the police station.

13.

The children spend time with the Mother from 9.00 am to 4.00 pm on Mother's Day and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

14.

The children spend time with the Father from 9.00 am to 4.00 pm on Father's Day and that any provision for time under this Order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

15.

The Mother undertake to continue her medication and treatment including any counselling or other psychological therapy as directed or recommended by her general practitioner from time to time or counsellor/psychologist as the case may be.

16.

Neither parent shall denigrate the other parent (or that parent's family or friends) to any other person, particularly any other person involved in the children's education, medical treatment or extracurricular activities.

17.

Each parent shall keep the other informed of their change of address, mobile telephone number and provide each other three (3) days prior notice of such change, provided that any communication required pursuant to this Order is conducted via SMS save for in the case of an emergency.

18.

In the event of an emergency the party with the children will contact the other as soon as practicable as to the detail of that emergency involving the children.

19.

The Mother shall administer any and all medication prescribed by a medical doctor to the children while they are in her care.

20.

The process to be used for resolving disputes about the terms or operation of these Orders is as follows:

(a) they shall consult with a Family Dispute Resolution Practitioner or Counsellor to assist with resolving any dispute or reaching agreement about changes to be made;

(b) they shall pay the costs of the Family Dispute Resolution Practitioner equally;

(c) in the event that they cannot agree on a Family Dispute Resolution Practitioner, or Counsellor, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;

(d) the Father shall choose one (1) of the listed practitioners within seven (7) days of receipt of the list;

(e) if the Father fails to choose then the Mother may choose.

21.

Save and except for any application for contravention of these Orders, before an application is made to this Honourable Court for a variation of these Orders to be taken into account the changing needs and/or circumstances of the children or the parties, each party is to take the steps referred to in Order 20 hereof.

22.

Pursuant to s 65L of the Family Law Act 1975 (Cth) the Father shall cause the children to attend an interview with Ms C at her rooms at 1.30 pm today, 18 September 2014, for the purpose of Ms C explaining to the children in the Father’s presence, these Orders and that the Orders made for the time they are to spend with the Mother each alternate weekend are in conformity with the Orders that the Father himself asked this Honourable Court to make.

23.

In the event that an application for contravention of these Order is filed, that

application shall be referred by the Registrar to the Honourable Justice Kent for the purpose of an urgent listing of the hearing of such application before Justice Kent if possible.

24.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), 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 to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

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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