FAMILY COURT OF AUSTRALIA
| OLSEN & RIGBY | [2020] FamCA 885 |
| FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the child – Where the mother seeks orders that the child live with her and spend only supervised recognition time with the father four (4) times per year at three (3) month intervals – Where the father seeks orders that the child spend unsupervised time with him and increase that time on a graduated basis – Where the Independent Children’s Lawyer seeks orders be made for the child to live with the mother and spend supervised recognition time with the father for once per month up until the child commences Kindergarten and then for that time to be reduced to six (6) times per year – Where the mother makes allegations that the father has perpetrated family violence against her and sexually abused the child – Where the mother has a history of mental health issues that are now in remission – Where the mother currently suffers from Post-Traumatic Stress Disorder and contends that disorder has arisen from an incident of non-fatal strangulation perpetrated by the father – Consideration of the family violence in the nature of ‘jealousy’, ‘gas lighting’, ‘social isolation’, ‘serious acts of physical violence’ and ‘excessive drinking’ – Where the Court finds that the father has perpetrated family violence against the mother including physical violence and by engaging in controlling, coercive and belittling conduct – Where the Court concludes that, based on the evidence presented, no finding is made that the father sexually abused the child – Where the Court finds that the mother is the only person who is the viable primarily care for the child – Whether there is an unacceptable risk to the child in spending time with the father – In the context of the mother having a pre-existing vulnerability to mental health issues, consideration given to the potential impact of the father’s conduct on the mother’s functioning including fulfilling her responsibility of being the child’s primary carer – Orders made for the child to spend recognition time with the father as proposed by the Independent Children’s Lawyer. |
| Family Law Act 1975 (Cth) s 4AB, 43(1)(c) and (ca), 60B(1), 60CA, 60CC, 61DA, 65DAA, Evidence Act 1995 (Cth) s 140 |
| A v A (1998) FLC 92-800 |
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- AGLC
- OLSEN & RIGBY [2020] FamCA 885
- Case
- [2020] FamCA 885
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether there was an unacceptable risk to the child in spending time with the father, and how to best promote the child's best interests in light of the allegations of family violence, the mother's mental health vulnerabilities, and the father's conduct. The court was required to assess the evidence of family violence, which included controlling, coercive, and belittling conduct, as well as physical violence and excessive drinking, and to determine if the father had sexually abused the child. Furthermore, the court had to consider the potential impact of the father's conduct on the mother's capacity to fulfil her role as the child's primary carer, given her pre-existing mental health vulnerabilities.
The court found that the father had perpetrated family violence against the mother, including physical violence and controlling behaviour, but made no finding that the father had sexually abused the child. The court concluded that the mother was the only viable primary carer for the child. Applying the principles of the *Family Law Act 1975* (Cth) regarding the best interests of the child, and considering the risks and vulnerabilities identified, the court made orders reflecting the Independent Children’s Lawyer’s proposal. The mother was granted sole parental responsibility and orders for the child to live with her. The father was ordered to spend supervised recognition time with the child, initially monthly and then bi-monthly, with costs for the supervision to be shared equally. Further orders addressed communication between the parties, notification of illness, and the mother's sole authority for passport and overseas travel for the child. The father was also ordered to pay a portion of the Independent Children’s Lawyer’s costs.
Orders
Orders of the court
1.
That Ms Olsen (“the mother”) have sole parental responsibility for B (“the child”) born … 2017.
2.
That the child live with the mother.
3.
That Mr Rigby (“the father”) spend time with the child, as follows:
(a) Up until the child commences Kindergarten, on the first Sunday of each month for a period of up to four (4) hours co-ordinated by a professional supervisory service nominated by the mother; and then
(b) On the first Sunday of each second month (being six (6) times a year) for a period of up to four (4) hours, to be co-ordinated by a professional supervisory service nominated by the mother.
(c) That each party will meet in equal shares the costs associated with Order (3)(a) and (b) herein.
4.
That the time in Order (3) shall occur at locations which are agreed between the father and supervisory service and may include members of the paternal family as elected by the father.
5.
That the father be at liberty to send cards and gifts to the child and the mother be permitted to read such cards and check such gifts to ensure that they are appropriate before passing them onto the child.
6.
That all communication between the parties is to be via email to an email address nominated by each party to the other.
7.
That the mother shall notify the father as soon as practicable in the event that the child suffers a major illness and injury.
8.
The mother have the sole authority to obtain a passport for the child without the consent of the father.
9.
Pursuant to s 65Y of the Family Law Act 1975 (Cth), the mother be permitted to take the child outside the Commonwealth of Australia without the consent of the father.
10.
That the father pay, within 28 days, the Independent Children’s Lawyers costs in the sum of $6,950.50 to be paid to Legal Aid NSW.
11.
That the mother pay, within 28 days, the Independent Children’s Lawyers costs in the sum of $5,300.50 to be paid to Legal Aid NSW.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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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