RIGBY & OLSEN

[2018] FamCA 51

FAMILY COURT OF AUSTRALIA

RIGBY & OLSEN [2018] FamCA 51

FAMILY LAW – REVIEW OF SENIOR REGISTRAR’S DECISION – INTERIM PARENTING – Where there are allegations of family violence – Where the allegations cannot be determined in interim proceedings – Where the mother has a significant history of mental health problems – Where the father cannot have unsupervised time with the child until such time as the allegations are determined by the Court – Orders made for the child to spend time with the father three times per week in the presence of the paternal grandparents.

Family Law Act 1975 (Cth) ss 61C, 61DA
Family Law Rules 2004 (Cth) r 9.08(3)

APPLICANT: Mr Rigby

RESPONDENT: Ms Olsen

FILE NUMBER: SYC 5015 of 2017

DATE DELIVERED: 7 February 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 1 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Richards

SOLICITOR FOR THE APPLICANT: Edwards Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Sansom SC

SOLICITOR FOR THE RESPONDENT: Pearson Emerson Meyer Family Lawyers

Orders

IT IS ORDERED

1. That pursuant to s 68L(2) of the Family Law Act 1975 (Cth) an independent children’s lawyer be appointed on behalf of the child B born … 2017 (“the child”), AND IT IS REQUESTED that the Legal Aid Commission of New South Wales arrange such separate representation.

2. That forthwith upon appointment by the said Legal Aid Commission of New South Wales or otherwise, the independent children’s lawyer file a Notice of Address for Service.

3. That within 48 hours of notification of such appointment the solicitors for the respective parties provide to the independent children’s lawyer copies of all relevant documents relied upon.

4. That upon their appointment, and after filing of an Address for Service, the independent children’s lawyer may inspect and, if permitted, copy all documents previously produced to the court in the proceedings and released to the parties.

PENDING FURTHER ORDER

1. That the child live with the mother and spend time with the father on each Tuesday, Wednesday and Sunday from 10.00 am to 1.00 pm, in the presence of either of the paternal grandparents or Ms C.

2. That the child spend time with the father for three hours on each of her birthday, the father’s birthday and Christmas Day, in the presence of either of the paternal grandparents or Ms C.

3. That the father cause the child to be collected from the mother’s residence at the commencement of the time she spends with him by either of the paternal grandparents or Ms C (or another person acceptable to the mother) and the father not be present at the handover.

4. That the mother, or her nominee, collect the child at the conclusion of the time with the father and that the father not be present when the child is returned to the mother.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rigby & Olsen has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5015 of 2017

Mr Rigby

Applicant

And

Ms Olsen

Respondent

REASONS FOR JUDGMENT

1. Mr Rigby (“the father”) and Ms Olsen (“the mother”) are the parents of the child B who was born in 2017. They separated two months after the child was born and these proceedings commenced about six weeks later.

2. Sadly for the child, the parents have not been able to negotiate appropriate arrangements for the child to have a meaningful relationship with both of her parents.

3. Applications in relation to parenting orders were heard by Senior Registrar Campbell on 13 October 2017 and orders were made which provided for the child to spend time with her father on three occasions each week for two hours on each occasion until the end of 2017. Those occasions were to be “in the presence of” either or both of the father’s parents or the father’s step‑mother, Ms C.

4. From 1 January 2018, the visits were extended to three hours.

5. The orders also provided for the father to undergo random urinalysis testing.

6. The father has sought to review the decision of the Senior Registrar and thus the matter falls to be determined as a hearing de novo.

ORDERS SOUGHT

1. The mother asks that the orders of the Senior Registrar remain on foot.

2. The father’s position, in his Response, was that the child should spend time with him, in the first of each two week period, from 2.30 pm on Tuesday until 2.00 pm on Wednesday and from 11.30 am until 5.30 pm on Friday. In the second week, he proposes that the child spend time with him from 7.30 am until 12.30 pm on Tuesday; from 10.30 am until 6.00 pm on Thursday and from 2.30 pm on Saturday until 2.30 pm on Sunday.

3. That position was amended before me so that, until the child is one year old, the father sought time with the child each Tuesday, Wednesday and Sunday for four hours from 10.30 am until 2.30 pm and on special occasions.

4. The father proposed that the time be unsupervised.

5. The father proposed that the time be extended from 24 April 2018, the child’s first birthday, by an hour on each occasion.

6. The father also seeks orders for both parents to undergo uranalysis testing.

BACKGROUND

1. The parents met in March 2016 and began living together in August 2016. the child was born in 2017 and they separated in mid-2017.

2. Contact between the child and the father was professionally supervised on eleven occasions after separation. Comprehensive reports of those visits were provided by the supervisors who expressed no concerns about the father’s care of the child or his interactions with her.

3. Since the orders of 13 October 2017, the time the father spent with the child has been supervised by one of the child’s grandparents or her step-grandmother Ms C.

LATE FILED MATERIAL

1. The father, who is the moving party, having filed his application to review the decision of the Senior Registrar on 30 January 2018, sought to rely on three late filed affidavits, two sworn by him on 30 January 2018 and 31 January 2018 and an affidavit sworn by the paternal grandfather on 30 January 2018.

2. Those affidavits were in addition to the affidavits upon which he relied before the Senior Registrar – four affidavits sworn by the father; two affidavits sworn by the paternal grandfather; an affidavit sworn by the paternal grandmother; an affidavit by a handwriting expert and an affidavit of a friend/colleague.

3. The Family Law Rules 2004 (Cth) (“Family Law Rules”) provide that each person is permitted to rely on one affidavit only. No leave was sought to rely on multiple affidavits and no explanation was given before me for the filing of multiple affidavits.

4. Senior Counsel for the mother objected to the receipt of the late filed material. Relevantly the first affidavit of the father and the affidavit of the paternal grandfather were filed electronically just before 5.30 pm on 30 January 2018. The further affidavit of the father was filed electronically on 31 January 2018 shortly before 3.00 pm. Those affidavits total 107 pages including annexures.

5. Rule 9.08(3) of the Family Law Rules provide that an affidavit must be filed “at least 2 days before the date fixed for the hearing”. This matter was fixed for hearing on 1 February 2018. The last day for the filing of affidavits was therefore 29 January 2018. The purpose of the rule is to ensure that parties have proper opportunity to consider material which has been filed.

6. No explanation was given for the late filing.

7. The late filed material was not admitted.

THE ALLEGATIONS

1. The mother alleges that the father drinks heavily and, I infer, to the extent that his ability to care for the child would be compromised. Whilst the father does not concede that allegation, he proposes that each parent undergo urinalysis testing and be restrained from consuming alcohol while caring for the child. I note that the father’s test results since 13 October 2017 have not indicated any concerning alcohol use.

2. The mother deposes to incidents of family violence. Specifically she alleges that in January 2017, the father put his hands around her throat so that she could not breathe.

3. Further she alleges that, in 2016, the father told her that he had been trained in martial arts and showed her his sword; that that he had killed people in the course of his associations with the a number of organisations; and that he had a gun.

4. The father denies each of those allegations.

5. The father relies on statements made by the mother which, he submits, tend to suggest that her evidence is not reliable.

6. Specifically, the father relies on text messages and letters and notes kept by the mother’s treating doctors.

7. On 19 September 2016, after the alleged revelations of the father’s past conduct, the mother wrote him an email in which she thanked him “for all that you do for me”, stating “I know it’s been tough and challenging at times for you and I’m sorry for all the times you felt as though I took you for granted. I’ve been a crazy pregnant woman and there is no way I could get through this without you. I need you. I want you. And I love you.”

8. Both the father and the paternal grandmother refer to text messages expressing the mother’s love and gratitude to the father for his support, both before and after the child’s birth.

9. The messages continued after the alleged incident of strangulation in January 2017. Loving messages were exchanged  throughout January 2017.

10. Both the mother and the father alleged coercive and controlling behaviour by the other in relation to sexual behaviour. No determination can be made in relation to that issue and, as each of them recounts the events, they have no direct impact on the child’s welfare.

11. The mother has a significant history of mental health difficulties. Counsel for the father submitted that the mother had expressed concerns about her ability to bond with the child and fears of losing the child. Further, it was submitted that the medical records demonstrated a history of suicide attempts, eating disorders, depression and anxiety.

12. The mother’s treating psychiatrist diagnosed post-partum depression. In June 2017, when the child was seven weeks old, the psychiatric notes record that the mother’s mental state had “decompensated in the past few weeks, increasing anxiety, depressive mood, worsening in eating disorder…”

CHILD RESPONSIVE MEMORANDUM

1. Arrangements were made for the parents to participate in a Child Dispute Conference with a Family Consultant on the morning before the hearing and a memorandum was produced by the Family Consultant.

2. The Family Consultant reported:

   [The mother] has made some very serious allegations of family violence. She alleges that [the father] was psychologically and physically abusive of her, and she described a pattern of coercive controlling behaviour. She said that [the father] would verbally abuse her, swear at her, denigrate her, and she claims that he once attempted to strangle her. Further, [the mother] has made some gravely concerning allegations that [the father] is affiliated with … (an outlaw [organisation]), owns an unregistered fire arm and, when employed by [the government], he reportedly killed nine people.

3. The Family Consultant recorded the father’s vehement denial of these allegations.

4. The mother conceded a significant and serious history of mental health problems, including one suicide attempt, anorexia and anxiety. She denied a diagnosis of post-partum depression. The Family Consultant noted that the father was extremely concerned about the mother’s mental health. He described the mother as a “pathological liar” and claimed that the paternal grandmother believes the mother has a personality disorder. The father hoped that the mother would be assessed by an independent psychiatrist.

5. The Family Consultant stated, “the child is a very young child with very specific needs in terms of requiring parenting Orders which foster her developmental security and the health of each parent-child relationship, now and in the future.”

6. Specifically, the Family Consultant referred to the need for the child to consolidate her relationship with her father.

7. The Family Consultant recommended that a Chapter 15 expert be instructed to prepare a comprehensive psychiatric assessment and that an Independent Children’s Lawyer be appointed.

8. In relation to the ongoing arrangements for the child, the Family Consultant recommended:

   … given the extremely serious allegations made by [the mother], it may be appropriate for the continuance of some protective measure, such as the paternal grandparents being present when the child spends time with [the father], at least until such time as the allegations can be further assessed.

DISCUSSION

1. The father has raised, and pursues, serious concerns about the mother’s mental health. Those concerns are supported by the material which has been produced on subpoena by her mental health professionals.

2. The orders of the Senior Registrar provide for the child to spend time with the father on three occasions each week for three hours on each occasion. Having regard to the child’s age, I consider that the length and frequency of time which is currently in place is appropriate.

3. There is no evidence that the child’s relationship with her father would be affected, either positively or negatively, by any extension of time as the father seeks.

4. Neither is there any evidence that the child’s relationship with, and attachment to, her father is being negatively affected by the current supervision by the paternal grandparents.

5. The mother has expressed confidence in the paternal grandfather who is the primary supervisor, the paternal grandmother living some distance away.

6. The maintenance of the mother’s mental health is of primary importance to the child. As recently as June 2017, the mother expressed to mental health professionals “feelings of hopelessness and helplessness, feeling like a burden and thoughts her family might be better off without her.”

7. Any removal or supervision has the potential to cause the mother to be more anxious and to have a consequent, negative impact on the mother’s mental health.

8. Whilst I accept that the father regards the supervision as burdensome and unnecessary, there is no evidence that it has any effect on the child or on his ability to parent her when she is with him.

9. The inconvenience to the father caused by the requirement for supervision must give way to the interests of maintaining the mother’s mental health.

10. The orders will provide for continued supervision.

CHANGEOVERS

1. The present arrangements provide for either of the paternal grandparents or Ms C to collect the child from the mother’s residence and the mother to collect the child at the conclusion of the father’s time with her.

2. The relationship between the parents is strained to such an extent that any contact directly between them is likely to lead to further conflict and further anxiety on the part of the mother.

3. However, it is reasonable that the mother participates in the travelling required for the child to spend time with her father and, since the father’s time takes place in the presence of family members, they can be the persons who collect the child from the mother and return her physically to the mother. The orders will provide for the mother, or her nominee, to collect the child at the conclusion of the father’s time.

URINALYSIS TESTING

1. The father seeks orders that both parties undergo urinalysis testing. The mother seeks to continue the order of the Senior Registrar for the father to be tested.

2. There is no evidence that suggests that urinalysis testing is appropriate or necessary for the mother.

3. The father has undergone random testing for six months and there has been no positive result.

4. I do not propose to order that either parent undergo testing.

FATHER’S APPLICATON FOR SELF EXECUTING ORDERS

1. Order 18 sought by the father provides, “In the event that the mother relapses with anorexia in the future or if she is admitted into any psychiatric hospital, hospital clinic or facility, the child shall live with the father during such period.”

2. I do not propose to make that order.

3. The child has never spent an extended period of time in the care of the father. There can be no argument that the mother is her primary carer and her primary attachment.

4. If the mother were to become ill, it may be that the child would still be able to remain in her care, wherever she is being treated. If that were not possible, a determination would need to be made about what arrangements are in the child’s best interests at that time and who is best able to provide for her needs. That consideration would take into account where the child has been living and with whom she is familiar. At the present time, the mother and the child live in the home of the maternal grandparents and, if the mother were not able to care for her, it may be her maternal grandparents who would be the most appropriate carers.

5. However, that determination cannot be made at this time.

PARENTAL RESPONSIBILITY

1. The mother seeks sole parental responsibility. The father seeks equal shared parental responsibility and asks that the issue be determined on an interim basis.

2. This is not an issue that can be determined on the available, untested evidence.

3. Section 61C of the Family Law Act 1975 (Cth) provides that, absent any other order, each parent has parental responsibility for the child.

4. The state of the evidence, and the nature of the allegations raised by the mother which raise family violence,  does not allow a finding in relation to the presumption (in s 61DA) that there should be equal shared parental responsibility and it is not appropriate, at this stage of the proceedings, to apply the presumption.

5. No order will be made in relation to parental responsibility.   

I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 7 February 2018.

Associate: 

Date:  07/02/2018