Diggins & Rushton

Case [2021] FedCFamC1F 322

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

Diggins & Rushton [2021] FedCFamC1F 322

File number(s): BRC 553 of 2018
Judgment of: HOGAN J
Date of Orders: 17 December 2021
Date of Reasons: 20 December 2021
Catchwords: FAMILY LAW – PARENTING – Unacceptable risk of harm.
Legislation: Family Law Act 1975 (Cth)
Cases cited:

A v A (1998) FLC 92-800; [1998] FamCA 25

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Bant & Clayton (2019) FLC 93-924; [2019] FamCAFC 198

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Cox v Pedrana (2013) FLC 93-537; [2013] FamCAFC 48

M v M (1988) 166 CLR 69; [1988] HCA 68

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Morden & Coad [2019] FamCAFC 233

N and S and the Separate Representative (1996) FLC
92-655; [1995] FamCA 139

U v U (2002) 211 CLR 238; [2002] HCA 36

Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Number of paragraphs: 504
Date of hearing: 2, 3, 6, 7 & 8 September 2021
Place: Brisbane
Counsel for the Applicant: Ms Guo
Solicitor for the Applicant: Trianon Law
Counsel for the Respondent: Mr Galloway
Solicitor for the Respondent: HCM Legal
Counsel for the Independent Children's Lawyer: Ms Oakley
Solicitor for the Independent Children's Lawyer: Pippa Colman & Associates

ORDERS

BRC 553 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS DIGGINS

Applicant
AND:

MR RUSHTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

17 DECEMBER 2021

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

1.All parenting plans and previous parenting orders are discharged.

2.The child, X, born on … 2015, live with the father.

3.

The father have sole parental responsibility for the child in respect of all major


long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)).

4.The child shall spend no time with the mother for a period of four (4) weeks from the date of these orders.

5.Following the expiry of the period of four (4) weeks from the date of these orders, the child shall spend supervised time with the mother as may be agreed between the parents and failing agreement follows:

(a)on one occasion per month at a Contact Centre closest to the child’s residence; and

(b)on one occasion per month:

(i)should the mother remain residing in the B Region: at the D Contact Centre at Suburb C; or

(ii)should the mother relocate to a location that is closer in distance to the Contact Centre closest to the child’s residence than it is to the D Contact Centre at Suburb C: at the Contact Centre closest to the child’s residence; and

(c)the costs of either or both contact centre/s shall be shared equally by the parents.

6.For the purpose of order 5:

(a)within seven (7) days of the date of these orders, the father shall:

(i)register with the Contact Centre closest to where the child will be residing with…

Continue reading Diggins & Rushton

Sign in free to access the full text

Details
AGLC
Diggins & Rushton [2021] FedCFamC1F 322
Case
[2021] FedCFamC1F 322
Decision Date

CaseChat Overview and Summary

The case of Diggins & Rushton was heard in the Federal Circuit and Family Court of Australia, Division 1. The matter involved a parenting dispute between Ms Diggins, the mother, and Mr Rushton, the father, regarding their child X. The primary concern was the unacceptable risk of harm the mother believed the father posed to the child. The court was required to determine which parent's evidence was more credible, particularly in light of conflicting testimonies, and to make orders that would best safeguard the child's welfare.

The central legal issues included assessing the credibility of the parents' evidence, determining the risk of harm the father posed to the child, and establishing a parenting arrangement that would protect X while allowing for a relationship with both parents. The court also had to consider the evidence of other witnesses, particularly the maternal aunt, Ms L, and decide how much weight to give her testimony given her evident bias against the father.

The court found that despite discrepancies in the father's testimony regarding the end of the de facto relationship, his overall evidence was credible, particularly his consistent denials of abusive behaviour towards X. The court preferred the father's evidence over the mother's due to inconsistencies and lack of substantiation. Regarding Ms L's testimony, the court accepted parts of her evidence but dismissed others as speculative and based on unfounded beliefs. The court determined that the father's lifestyle, while seemingly extravagant, was not necessarily indicative of illegal activities as the mother alleged.

The court issued comprehensive orders to ensure the child's safety and well-being. X was ordered to live with the father, who was granted sole parental responsibility for major long-term issues. The mother was initially barred from contact for four weeks, after which supervised visits and communication were to be arranged. The mother was also prohibited from speaking negatively about the father in the child's presence and from discussing the proceedings with X. Additionally, the father was directed to arrange for the child to engage in counselling, and both parents were enjoined from involving X in their disputes. The mother was further restrained from disseminating information about the proceedings.

These orders aimed to protect the child from potential harm while facilitating a relationship with both parents under supervised conditions. The court's decision was guided by the need to ensure X's safety and to provide a stable environment for the child's development.

Orders

Orders of the court

BRC 553 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DIGGINS

Applicant

AND:

MR RUSHTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

17 DECEMBER 2021

IT IS ORDERED BY WAY OF FINAL ORDER THAT:

1. All parenting plans and previous parenting orders are discharged.

2. The child, X, born on … 2015, live with the father.

3.

The father have sole parental responsibility for the child in respect of all major

long-term issues (as that expression is defined in the Family Law Act 1975 (Cth)).

4. The child shall spend no time with the mother for a period of four (4) weeks from the date of these orders.

5. Following the expiry of the period of four (4) weeks from the date of these orders, the child shall spend supervised time with the mother as may be agreed between the parents and failing agreement follows:

(a) on one occasion per month at a Contact Centre closest to the child’s residence; and

(b) on one occasion per month:

(i) should the mother remain residing in the B Region: at the D Contact Centre at Suburb C; or

(ii) should the mother relocate to a location that is closer in distance to the Contact Centre closest to the child’s residence than it is to the D Contact Centre at Suburb C: at the Contact Centre closest to the child’s residence; and

(c) the costs of either or both contact centre/s shall be shared equally by the parents.

6. For the purpose of order 5:

(a) within seven (7) days of the date of these orders, the father shall:

(i) register with the Contact Centre closest to where the child will be residing with him and, if necessary, the D Contact Centre at Suburb C; and

(ii) provide confirmation of registration in writing to the mother; and

(b) within seven (7) days of receiving written confirmation of registration from the father, the mother shall:

(i) register with the Contact Centre closest to where the child will be residing with the father which the father registered at and, if necessary, the D Contact Centre at Suburb C; and

(ii) provide confirmation of such registration in writing to the father; and

(c) upon the parties receiving notice from either or both contact centres of an available intake appointment, if one is required, each party shall ensure they attend that nominated intake appointment; and

(d) upon the parties receiving notice from either or both contact centres of a time available for the child to spend time with the mother, the father shall ensure that the child attends at either or both contact centres on the dates and at the times nominated.

7. Following the expiry of the period of four (4) weeks from the date of these orders, the child shall communicate with the mother as follows:

(a) by video call each Wednesday between 5.30 pm to 6.00 pm, with the same to be supervised by the father or a person nominated by him; and

(b) by video call between 5.30 pm to 6.00 pm on the child’s birthday, mother’s birthday, Christmas Day and Mother’s Day, with the same to be supervised by the father or a person nominated by him.

8. In order to facilitate the child’s communication with the mother:

(a) the mother shall initiate the communication; and

(b) the father shall make the child available to receive the communication; and

(c) if, for any unforeseen circumstance, the child misses the communication from the mother – the father shall arrange for the child to contact the mother on the following night.

9. The mother shall be at liberty to send gifts to the child to an address nominated by the father for special occasions, including the child’s birthday, Easter, Christmas and significant milestones such as graduation.

10. For the purpose of order 9:

(a) within fourteen (14) days of the date of these orders, the father shall notify the mother in writing of the address or PO Box to which the mother can send the gifts; and

(b) the father shall ensure such gifts are provided to the child on the day of such special occasion.

11. During the time the child spends time with or communicates with the mother, the mother shall:

(a) respect the privacy of the father and not question the child about his personal life; and

(b) speak of the father respectfully; and

(c) not denigrate or insult the father in the presence or hearing of the child and shall use her best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the child.

12. Each parent shall keep the other parent informed at all times of a contact telephone number and an email address and shall notify the other as to any change in those details as soon as practicable after such change and no later than after forty-eight (48) hours of the same.

13. Save for in therapeutic counselling, neither parent shall discuss these proceedings, nor the allegations made in them, with the child, nor involve the child in any discussions regarding any issue in dispute between them and each parent shall take all reasonable steps to remove the child from any such discussion if instituted by any third party.

14. Save for the purpose of obtaining legal advice, the mother is restrained and an injunction issued pursuant to s 68B of the Family Law Act 1975 (Cth) from publishing or disseminating by any means, or requesting or causing a third party to publish or disseminate, any material or information the subject of these proceedings, or in relation to the father or the child.

15. The father shall forthwith make arrangements for the child to engage in counselling.

16. Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Family Report of Ms E filed 17 December 2020, the Order made 17 December 2021 and the Reasons for Judgment published in support of the same to the school at which the child attends, to any therapist upon whom the parents and/or the child attend for the purpose of therapy and to the Department of Children, Youth Justice and Multicultural Affairs (by whatever name the Queensland Department is then known), the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.

17. Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.

18. The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.

AND IT IS FURTHER ORDERED THAT

19. All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.

20. Pursuant to s 65DA(2) and s 62B 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 Fact Sheet attached and these particulars are included in these Orders.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Given the findings outlined above, where the evidence given by the father and the mother conflict, I accept that given by the father in preference to that given by the mother unless I indicate otherwise. The evidence of other witnessesThe evidence of Ms L (the maternal aunt) I accept that Ms L has some pretty negative opinions of the father and his family and that she does not have a kind word to say about the father; her view is that she has never seen him show any good qualities. She said she had never heard X say anything affectionate or nice about her father and had never heard the mother tell X, at any time in her life, anything like that her father loved her. As already noted, I consider that Ms L was untruthful when she said her sister had not asked her to talk to X to attempt to obtain disclosures from her. Whilst this conclusion casts significant doubt on her evidence generally, I accept her evidence that:(a)the mother had never told her in 2021 that she had changed her views about the risk she asserted the father presented to X; and (b)she understood the mother’s views to be that she still regarded the father as a person who may harm X. I also accept Ms L’s evidence that the father has never behaved in an inappropriate way around her children. An appreciation of the difficulty in accepting other aspects of Ms L’s evidence, or according weight to the same, can, I think, be gained by having regard to the following. I consider that the answers she gave when cross-examined established that Ms L had reached her asserted existing belief that the father used and sold drugs to fund his lifestyle (which she said she “100 per cent” believed) on only the following:(a)during the parental relationship, the father had wanted to go to Country AC and take the mother with him; and(b)the father’s flatmate was a public servant based in Country AC; and(c)there had been a large drug arrest in Country AC and a programme about the drug trade said to be occurring in Country AC had been shown on television; and(d)she had done a case about Country AC and drug trafficking during her studies (undertaken via TAFE on a part-time basis over three years when she had intended to become a public servant); and(e)she regarded the father as having an “exclusive” lifestyle (whereby he lived in a house and wanted jet skis and boats) which, in essence, she thought unlikely to have been able to be funded by his business of buying and selling crystals. Further, whilst Ms L asserted that she had not taken her beliefs about the father’s involvement in the sale of drugs any further (which I took to mean something like reporting him to authorities) in the past because she “100 per cent” believed that the father’s family would have harmed her or her family if she had, she accepted that, despite giving the evidence she did in her affidavit filed 4 October 2020, she had not been harmed. Despite everything, Ms L maintained her belief that, when the mother met the father, he was “100 per cent” using and selling drugs to fund his lifestyle. She said, when cross-examined, that she now believed that the father was “probably” being watched very well and was “probably” not doing this anymore. However, when asked to nominate those by whom she thought the father was being watched, she said “just everybody”: the police because they were around; the Department; “like all of the people looking for his money, tax, everything”. When asked whether she thought the Australian Tax Office was investigating the father, she said that she was just “throwing” that out there and did not know who was investigating him. Her answers certainly did not suggest that she placed particular weight upon ensuring that the evidence she gave was factual or precise, as opposed to a collection of conclusions that she had been willing to “throw” about.

Decision

Reasons for decision

The discrepancy in the evidence given by the father about the date on which the parents’ de facto relationship ended does not persuade me that his evidence in these proceedings, including his consistent denials of any suggestion that he has acted in any way that is abusive of X, is false.Conclusions about parental credit Given the findings outlined above, where the evidence given by the father and the mother conflict, I accept that given by the father in preference to that given by the mother unless I indicate otherwise. The evidence of other witnessesThe evidence of Ms L (the maternal aunt) I accept that Ms L has some pretty negative opinions of the father and his family and that she does not have a kind word to say about the father; her view is that she has never seen him show any good qualities. She said she had never heard X say anything affectionate or nice about her father and had never heard the mother tell X, at any time in her life, anything like that her father loved her. As already noted, I consider that Ms L was untruthful when she said her sister had not asked her to talk to X to attempt to obtain disclosures from her. Whilst this conclusion casts significant doubt on her evidence generally, I accept her evidence that:(a)the mother had never told her in 2021 that she had changed her views about the risk she asserted the father presented to X; and (b)she understood the mother’s views to be that she still regarded the father as a person who may harm X. I also accept Ms L’s evidence that the father has never behaved in an inappropriate way around her children. An appreciation of the difficulty in accepting other aspects of Ms L’s evidence, or according weight to the same, can, I think, be gained by having regard to the following. I consider that the answers she gave when cross-examined established that Ms L had reached her asserted existing belief that the father used and sold drugs to fund his lifestyle (which she said she “100 per cent” believed) on only the following:(a)during the parental relationship, the father had wanted to go to Country AC and take the mother with him; and(b)the father’s flatmate was a public servant based in Country AC; and(c)there had been a large drug arrest in Country AC and a programme about the drug trade said to be occurring in Country AC had been shown on television; and(d)she had done a case about Country AC and drug trafficking during her studies (undertaken via TAFE on a part-time basis over three years when she had intended to become a public servant); and(e)she regarded the father as having an “exclusive” lifestyle (whereby he lived in a house and wanted jet skis and boats) which, in essence, she thought unlikely to have been able to be funded by his business of buying and selling crystals. Further, whilst Ms L asserted that she had not taken her beliefs about the father’s involvement in the sale of drugs any further (which I took to mean something like reporting him to authorities) in the past because she “100 per cent” believed that the father’s family would have harmed her or her family if she had, she accepted that, despite giving the evidence she did in her affidavit filed 4 October 2020, she had not been harmed.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.