Ryeburn and Ryeburn (No. 2) - [2010] FamCA 882

FAMILY COURT OF AUSTRALIA

RYEBURN & RYEBURN (NO. 2)

[2010] FamCA 882

FAMILY LAW – CHILDREN – ALLEGATIONS OF ABUSE – Assertion of unacceptable risk – Consideration of the background of extensive departmental intervention and lengthy litigation history – Discussion of the need in the children’s best interests to bring an end to the litigation – Mother asserts that the father, paternal uncle and the children’s half-sister have interfered with the parties’ son – Alleged interference by the half-sister is said to have occurred at a contact centre – Consideration of the difficulties in clearly setting out the disclosures and allegations – Consideration of the best interests of the children

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65AA, 65D, 65DAA, 65DAC, 69ZX, 69ZN 69ZW
Evidence Act 1995 (Cth) s 144(2)

Cotton v Cotton [1983] FLC 91-331
Godfrey v Sanders [2007] FamCA 102
Goode v Goode [2006] FLC 93-286
In the Marriage of Jurss (1975) 1 Fam LR 11,203
M v M (1988) 166 CLR 69
Marsden and Winch (No. 3) [2007] FamCA 1364
McCall & Clark (2009) FLC 93-405
McCoy v Wessex (2007) 38 Fam LR 513
N and S and the Separate Representative (1996) FLC 92-655
Napier v Hepburn (2006) 36 Fam LR 395
Neil v Nott (1994) 68 ALJR 509
Partington & Cade (No 2) (2010) 42 Fam LR 401
Potter & Potter (2007) 37 Fam LR 208

APPLICANT:

Mr Ryeburn

RESPONDENT:

Ms Ryeburn

INDEPENDENT CHILDREN’S LAWYER:

Mr Grant, Grant & Associates

FILE NUMBER:

BRC

11060

2007

DATE DELIVERED:

1 October 2010

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

24-25 August 2010

REPRESENTATION

APPLICANT:

Appeared in person

RESPONDENT:

Appeared in person

COUNSEL FOR THE

INDEPENDENT CHILDREN'S LAWYER:

Mr George

SOLICITOR FOR THE
INDEPENDENT CHILDREN'S LAWYER

Grant & Associates

Orders

IT IS ORDERED THAT

Parental Responsibility

The mother of the children J born … June 2002 and H born … March 2005 (“the children”) shall have sole responsibility in respect of each of them.

Live With

The said children shall live with their mother.

Facilitation of Information About the Children

The appointment of the Independent Children’s Lawyer (“ICL”) shall cease 12 months from the date of this Order.
Pursuant to the provisions of s 121(9)(g) of the Family Law Act 1975 (Cth) (“the Act”), the ICL is hereby authorised to publish an account of these proceedings, namely these Orders and the Reasons for Judgment of Murphy J pertaining thereto, to:
(a)the Director-General of the Department of Communities (Child Safety Services) and any person within that Department as she might authorise or any officer of that Department who is charged with the responsibility for undertaking any investigation in respect of either of the said parents and/or the said children;
(b)the Director-General or other such equivalent officer of the Department with equivalent or similar responsibilities to the Department of Communities (Child Safety Services) in Queensland in any such State or Territory in which the mother and children shall reside and any person within…

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 Ryeburn and Ryeburn (No. 2)

Details

AGLC: Ryeburn and Ryeburn (No. 2) [2010] FamCA 882
Case: [2010] FamCA 882
Decision Date: 1 October 2010

CaseChat Overview and Summary

In the matter of *Ryeburn and Ryeburn (No. 2)*, Murphy J of the Family Court of Australia made orders concerning the parental responsibility and living arrangements for two children, J and H. The dispute centred on the arrangements for the children and the communication between the parents and the children, as well as the dissemination of information about the proceedings.

The court was required to determine the extent of parental responsibility, where the children should live, and the conditions under which information about the children and the proceedings could be shared. Crucially, the court also had to consider the role and future involvement of the Independent Children's Lawyer (ICL) and the restrictions to be placed on the parents regarding the publication and discussion of the proceedings.

Murphy J ordered that the mother have sole parental responsibility for both children and that they live with her. The appointment of the ICL was to cease after 12 months, but prior to that, the ICL was authorised to publish an account of the orders and reasons to specific government departments, educational institutions, and treating medical practitioners. The court also imposed significant restrictions on both parents, enjoining them from discussing the proceedings with the children and from publishing any account of the proceedings, save as expressly permitted. The mother was directed to facilitate the provision of information about the children to the father, including school reports and medical information, at her expense. The father was permitted to send written communications and gifts to the children, with copies to be provided to the ICL for a period of 12 months. After this period, if the ICL's appointment had ceased, the father would be at liberty to publish an account of the proceedings to the same parties as the ICL was initially authorised to inform. All other outstanding applications were dismissed.

Orders

Orders of the court

IT IS ORDERED THAT

Parental Responsibility

The mother of the children J born … June 2002 and H born … March 2005 (“the children”) shall have sole responsibility in respect of each of them.

Live With

The said children shall live with their mother.

Facilitation of Information About the Children

The appointment of the Independent Children’s Lawyer (“ICL”) shall cease 12 months from the date of this Order.

Pursuant to the provisions of s 121(9)(g) of the Family Law Act 1975 (Cth) (“the Act”), the ICL is hereby authorised to publish an account of these proceedings, namely these Orders and the Reasons for Judgment of Murphy J pertaining thereto, to:

(a) the Director-General of the Department of Communities (Child Safety Services) and any person within that Department as she might authorise or any officer of that Department who is charged with the responsibility for undertaking any investigation in respect of either of the said parents and/or the said children;

(b) the Director-General or other such equivalent officer of the Department with equivalent or similar responsibilities to the Department of Communities (Child Safety Services) in Queensland in any such State or Territory in which the mother and children shall reside and any person within any such Department as he or she might authorise or any officer of any such Department who is charged with the responsibility for undertaking any investigation in respect of either of the said parents and/or the said children;

(c) the Principal or Director as the case may be of any school, pre-school or kindergarten which the children might attend;

(d) any treating medical practitioner for the children or any psychiatrist, psychologist, counsellor or therapist which the children might attend.

The mother and father shall, within 7 days of the date of this order, each provide to the other and to the ICL an address effective for communication with each by the other, and effective for written communications by the father with the children.

Each party shall advise the other in writing of any change in the addresses provided in accordance with paragraph 5 of these Orders , within 7 days of its occurrence, and, in the event that, in accordance paragraph 3 of these Orders the ICL shall remain appointed, also to the ICL.

The mother shall notify the father in writing of the name and address of each and every school, pre-school or kindergarten at which either or both of the children are enrolled within 7 days of their enrolment, and in the event that, in accordance with the paragraph 3 of these Orders the ICL shall remain appointed, shall, in addition, similarly give written notification to the ICL.

The mother shall within seven days of any appointment with same, notify the father, and in the event that, in accordance with the paragraph 3 of these Orders the ICL shall remain appointed, shall, in addition, similarly give written notification to the ICL, of the name and address of each and every:

(a) medical practitioner upon whom the children or either of them attend; and

(b) psychiatrist, psychologist, counsellor or therapist upon whom the children might attend.

In the event that the ICL shall be discharged in accordance with paragraph 3 of these Orders, but only in that event, the father shall be at liberty to publish an account of these proceedings to the persons named in paragraph 4 of these Orders but not otherwise.

10.

A copy of s 121 of the Act shall be attached to these orders and any copy thereof.

11.

Save as otherwise provided in these Orders and where it is necessary for either party to provide or publish a copy of these orders for any proper purpose, each of the mother and father be restrained and an injunction issue restraining each of them from publishing any account of these proceedings or any part of these proceedings.

12.

Each of the parties shall be restrained and an injunction shall issue restraining each and both of them from discussing – either orally or by reference in writing – any aspect of these proceedings with either of the children and from permitting the children to remain in the vicinity of any other persons discussing any aspect of these proceedings.

13.

The mother shall do all such things, sign all such documents and pay all such reasonable fees as might be applicable so as to authorise any person referred to in paragraphs 4 (c) and (d) of these Orders to provide to the father, and in the event that, in accordance with the paragraph 3 of these Orders the ICL shall remain appointed, shall, in addition, similarly provide to the ICL:

(a) All such information as he might reasonably require in respect of the children;

(b) At her expense school photos on any such occasion upon which same are arranged by the school;

(c) At her expense, copies of any awards, certificates of participation and the like in respect of any sporting or extra-curricular activity in which the children are engaged;

(d) At her expense, copies of each and every school report, assessment, or notification received from the school in respect of the children’s behaviour, progress or the like.

14.

The mother shall, within 7 days of the occurrence of same, advise the father, and, in the event that, in accordance with the paragraph 3 of these Orders the ICL shall remain appointed, shall advise, in addition, the ICL of:

(a) any medical emergency, serious injury or the diagnosis of any serious medical condition or ailment suffered by the children;

(b) any notification of any kind made by her, or made by any other person with her knowledge, to the Queensland Department of Communities (Child Safety Services) or any person or body having similar responsibilities in any other State or Territory.

Orders for Time and Communication

15.

Save as is otherwise agreed in writing between the mother and the father, the children shall spend no face to face time with the father, nor communicate with him except in accordance with the succeeding paragraphs of these orders:

(a) The father shall be at liberty to send all such written communications and/or gifts to the children as he might choose to the addresses provided to him in accordance with paragraphs 5 and 6 of these orders, but not otherwise.

(b) For a period of 12 months from the date of these orders:

i. the father shall send a copy of any such written communication forwarded by him and a description of any gift to the ICL;

ii. the mother shall forward a copy of any reply by the children to any such communication to the ICL.

(c) The mother shall facilitate the sending of any and all communications initiated by the children with their father to the addresses provided by him in accordance with paragraphs 5 and 6, but not otherwise.

Miscellaneous

16.

All outstanding applications for parenting orders be otherwise dismissed and removed from the list of cases awaiting finalisation.

17.

All subpoenaed documents shall be returned to the persons or institutions from which they emanated and all exhibits be returned to the person or persons who tendered the same.

18.

Pursuant to s 65DA(2) and s 62B, the particulars of the obligations which 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 Fact Sheet attached hereto and those particulars are included in 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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