Rigg and Stilwell (No.4)
[2016] FCCA 2205
•26 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RIGG & STILWELL (No.4) | [2016] FCCA 2205 |
| Catchwords: FAMILY LAW – Final parenting – competing parenting applications – with whom child should live – determination of parental responsibility – where communication between the parents is strained or minimal – unsupported allegations of sexual abuse not pressed at hearing – agitation by father of unacceptable risk constituted by mother not accepting that he has not abused the child – the impact of the allegations upon the child’s future care arrangements – history of Departmental and Police involvement – consideration of unacceptable risk – where the father proposes that the mother have supervised time with the child for a period of up to six months – consideration of the bases upon which supervision is suggested as necessary. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 60CC(2A), 61C, 61DA, 65DAA, 65DAA(5), 65DAC, 69ZN, 69ZT(3), 1002A |
| Cases cited: Browne & Dunn (1893) 6 R 67 (HL) Johnson & Page [2007] FamCA 1235 M & M [1988] HCA 68 Other Articles Cited: William Felstiner, Richard Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming’ (1980-81) 15(3-4) Law & Society Review, 631 Hon. John Fogarty A.M., “Unacceptable Risk – A Return to Basics”, (2006) Australian Journal of Family Law, 20 AJFL 249 |
| Applicant: | MR RIGG |
| Respondent: | MS STILWELL |
| File Number: | AYC 324 of 2011 |
| Judgment of: | Judge Harman |
| Hearing dates: | 15, 16 July 2015, 28, 29, 30 September 2015, 1, 2 October 2015, 1, 2, 3 December 2015, 15 January 2016, 27 June 2016 |
| Date of Last Submission: | 27 June 2016 |
| Delivered at: | Parramatta |
| Delivered on: | 26 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | My Longworth |
| Solicitors for the Applicant: | Robb & Associates Solicitors |
| Counsel for the Respondent: | Ms Dart |
| Solicitors for the Respondent: | Toner & May Legal Solicitors |
| Solicitors for the Independent Children’s Lawyer: | Ms Wearne of Legal Aid NSW Sydney Central Family Law |
ORDERS
That all prior parenting Orders with respect to the child, X born (omitted) 2011, shall be and are hereby discharged.
That pursuant to section 61C of the Family Law Act 1975 each of X’s parents, Ms Stilwell and Mr Rigg, shall have parental responsibility for X at such times as X is in their care provided, however, that:
(a)Each parent shall do all things, sign all documents and give all consents, authorities and instructions as may be necessary to allow and ensure that each parent is recorded with any school, after school care or similar service attended by X, as both a parent and emergency contact person and, further, so as to ensure that each parent is able to obtain directly from X’s school any reports or other information as they may desire and able to attend all and any events and activities at the school to which parents are invited and encouraged to attend;
(b)Each parent shall forthwith and contemporaneous with the event advise the other parent of any significant illness, injury or hospitalisation experienced by X and each shall do all things, sign all documents and give all consents and authorities necessary to ensure that each parent can obtain all and any information that they desire with respect to X’s treatment and be actively involved in any treatment decisions for X and to visit X if hospitalised;
(c)Neither parent shall permit X to attend upon any counsellor, psychologist or psychiatrist without the consent of the other parent first had and obtained and should X be attending upon any such person then each parent shall do all things necessary to authorise any such counsellor, psychologist or psychiatrist to consult and meet with each parent (provided, however, that this Order shall not be taken to bind such counsellor, psychologist or psychiatrist to do so and it shall be a matter within that person’s professional judgement as to what consultation, if any, they desire) and to obtain from that person such information or reports as either parent may desire.
That X shall live with her mother Ms Stilwell.
That X shall spend time with her father Mr Rigg:
(a)During school terms:
(i)Each alternate weekend from the conclusion of school Thursday (or 3pm if X has not attended school that day) until the commencement of school the following Monday (or 9am if X is not attending school) and extending to Tuesday in the event of a long weekend, to commence with the first weekend of each school term;
(ii)Each intervening week from the conclusion of school Thursday (or 3pm if X has not attended school that day) until the commencement of school the following day (Friday) (or 9am if X is not attending school);
(b)During school holidays:
(i)For the second half of each short New South Wales school holiday from 6pm on the middle Saturday of the holiday period until the commencement of school on the first day of school attendance;
(ii)For one half of the Christmas school holiday period in each year and with respect to same:
1. For the 2016/17 school holidays such time shall occur on a week about basis with X spending the first week and each alternate week of the holiday period with Ms Stilwell;
2. Commencing 2017/18 for a block period equal to one half of the entire school holiday period and absent agreement between the parents to alternate between the first half (in 2017/18 and each alternate year thereafter) and the second half (in 2018/19 and each alternate year thereafter) and with the midpoint changeover to be 6pm 9 January;
(c)From the conclusion of school Friday until the commencement of school the following Monday on the Father’s Day weekend each year (and provided that should Mother’s Day fall on any weekend when X is, pursuant to the above Orders, to be in the father’s care then the father’s time shall, for that weekend, be suspended).
Notwithstanding anything to the contrary contained within the above Orders, X shall spend time with each parent during the Christmas Eve/Boxing Day period and such that X shall spend time with the parent in whose care she is not already in from 3pm Christmas Day until 6pm Boxing Day.
Each parent shall, at any time that X is to pass into their care, collect X or cause X’s collection from her school (if a school attendance day) and if X is not attending school or has not attended school on that day then from the home of the other parent.
That the mother shall continue to consult with Ms E for the purpose of receiving therapeutic assistance in managing her anxiety and Ms Stilwell shall attend appointments with Ms E with such frequency and for such duration as Ms E may direct.
That each parent shall forthwith and within seven days, do all things, sign all documents and give all consents, authorities and instructions as may be necessary to re-engage with the Parenting Orders Program and each parent shall then and subject to acceptance into that Program, attend at such times and places and pay such fees as are necessary to enable participation in the program for so long as the provider of service shall determine is necessary and appropriate.
The Independent Children’s Lawyer shall be at liberty to provide to the coordinator of the Parenting Orders Program a copy of these reasons together with a copy of the Report of Dr W.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
Pursuant to S.65DA(2) and S.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged that all exhibits then be returned to the party who tendered same and that all material produced on subpoena be returned to the person or organisation who produced same or securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Rigg & Stilwell (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
Table of Contents
Introduction
The relationship between the parties
The central issue
History of proceedings
Material considered
Proposals of each party and the Independent Children’s Lawyer
Chronology
The evidence
The father Mr Rigg
Ms P
Ms W
Ms Stilwell
The mother’s allegations of abuse
Inconsistencies in the evidence
The mother's beliefs – as to whether X had been abused
Professional evidence
Dr W
Dr B
Mr C
Dr N
Ms E
Unacceptable risk
What harmful outcome is potentially present in this situation?
What is the probability of this outcome coming about?
What risks are probable in this situation in the short, medium and long term?
What are the factors that could increase or decrease the risk that is probable?
What measures are available whose deployment could mitigate the risks that are probable?
What are the identifiable risks?
Are any of the identifiable risks acceptable?
Can any of the identifiable risks be mitigated and, if so, how?
Following the assessment of risks, what are the arrangements, and hence Orders, which are in X’s best interests
Legislative pathway
Objects & principles
Allocation of parental responsibility
Primary considerations
Additional considerations
Views expressed by X
The nature of X’s relationship with each parent and others
The extent to which each parent has taken or failed to take the opportunity to participate in decision-making and spend time with X
The ability of each parent to promote, encourage and facilitate X’s relationship with the other
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain X
The likely effect of change in X circumstances
Practical difficulty and expense
Capacity of each parent
Maturity, sex, life style and background of X
Aboriginality
The attitude towards the responsibilities of parenthood demonstratedby each parent
Family violence
Avoidance of future proceedings
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
AYC 324 of 2011
| MR RIGG |
Applicant
And
| MS STILWELL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a dispute between two parents with respect to future arrangements for their daughter, X born (omitted) 2011.
X’s parents, the parties to these proceedings, are Mr Rigg, X’s father and the Applicant, and Ms Stilwell, X’s mother and the Respondent. Young X’s best interests are independently represented and capably so.
As Felstiner, Abel and Sarat opined, “Disputes are not things: They are social constructs”.[1] Notwithstanding this, for these parents, this dispute has become tangible. Their dispute has become a “thing”. Indeed, the dispute between these parents has become the “puca” that accompanies them everywhere. As such, these parents have, to a large extent and whether equally or not, lost focus upon what is important, their daughter X, and instead have fixed their attention upon and directed their energy and resources into their dispute. This has been to their and their daughter’s great disadvantage.
[1] William Felstiner, Richard Abel and Austin Sarat, ‘The Emergence and Transformation of Disputes: Naming, Blaming, Claiming’ (1980-81) 15(3-4) Law & Society Review, 631, 631.
The relationship between the parties
Mr Rigg and Ms Stilwell have never married and did not, save for a period of approximately 3 weeks immediately preceding and approximately 8 weeks immediately following X’s birth, cohabit with each other. That “cohabitation” was purposive of support of Ms Stilwell in the later stages of her pregnancy and proximity to X after her birth rather than as a demonstration of love or commitment. X has no lived experience, nor would she have any recollection of her parents being together in a relationship.
The circumstances of the relationship between these parents, a relationship however it might be described leading to X’s birth, is perhaps emblematic of the “challenges” faced by the Court as myriad forms of relationships, beyond heteronormative marriage, present themselves and give rise to parenting disputes. More significantly, the circumstances of the relationship between these parents and X’s conception have impacted and will, in all probability, continue to impact upon the parenting relationship between Mr Rigg and Ms Stilwell.
Ms Stilwell describes the relationship between her and Mr Rigg as having been a “… casual relationships which were more sexually focused”.[2] The father’s view of the relationship is not dissimilar describing the relationship as “non-committed” and “… based entirely on a physical relationship”.[3] Mr Rigg’s sister Mrs P was pragmatic, if not blunt, in her description of the relationship between her brother and Ms Stilwell describing that, “…it was not a relationship… They were just “friends with benefits””.[4]
[2] See page 5 of the Report of Dr W dated 2 February 2015.
[3] Ibid page 15.
[4] Ibid page 16.
The Part 15 Report Writer, Dr W, summarises the relationship in the following terms:
On both parent’s account, their relationship was basically a series of sexual encounters of convenience and there was never a formally committed relationship of any sort. Indeed there seems little doubt that their relationship would not have persisted very much longer had Ms Stilwell not fallen pregnant. In the event, this resulted in them cohabiting for a period of about three months first in the father’s home then later the mother’s home for the purpose of Mr Rigg providing practical support to Ms Stilwell until X was about two months old.
The central issue
As parenting proceedings X’s best interests are the paramount consideration.[5] However, the proceedings have been conducted with a centrality of focus upon issues of risk. Whilst this may well have been the central focus of the parties it has not been that of the Independent Children’s Lawyer. Nor will it be that of the Court.
[5] Family Law Act 1975, section 60CA.
One of the many witnesses in these proceedings, a psychologist Mr G, opined:[6]
I’m sure all parties agree that the “allegations” are the central negative issue in X’s life at present. They continue to have a toxic impact on her family.
[6] See Exhibit ICL2 at page 7.
The “allegations” to which Mr G refers are allegations that were reported by Ms Stilwell to a variety of agencies commencing 18 June 2014. The central issue that has developed in the conduct of this Trial, over some 12 days, has not been the accuracy or veracity of those “allegations” but rather the impact of those allegations upon X’s future care arrangements.
Ms Stilwell has not urged the Court to make any finding of unacceptable risk posed to X by either parent. This is so notwithstanding that these proceedings have their genesis in allegations raised by Ms Stilwell, allegations of sexual impropriety by Mr Rigg towards X if not allegations of sexual abuse of X by Mr Rigg.
Ms Stilwell, through her Counsel, opened her case on the first day of Trial with a clear statement that the Court would not be urged to make any finding of abuse of X by her father nor any finding that an unacceptable risk was posed to X by Mr Rigg.
Notwithstanding this position advanced by Ms Stilwell, the allegations which had been raised, on 18 June 2014 and subsequently, remained relevant and assumed some centrality to the conduct of the case. This is so, in large part, as Mr Rigg urges the Court to make a finding that Ms Stilwell has emotionally abused X, subjected X to family violence and/or neglected X. The Court is urged by Mr Rigg to find that Ms Stilwell and her parenting represent an unacceptable risk to X.
As these allegations have assumed, at least for the parties, a centrality to this dispute, I propose to deal with those allegations in some detail and will turn to the evidence regarding those allegations in due course.
For the benefit of the parties I make clear, at this point, that I am not satisfied that X is or would be exposed to an unacceptable risk from either parent. In due course I will articulate my reasons for this finding.
Further, I am not satisfied that either parent has abused X. Again, I shall, in due course, articulate my reasons for this finding.
I am not satisfied that either parent has subjected X to family violence or exposed her to family violence or neglect. Again, my reasons for this finding will be articulated in due course.
I have made these findings clear from the outset as I would not wish either of these parents to embark upon a consideration of these reasons without those clear statements preceding that exercise. These parents, let alone young X, have already been through enough and need not commence a reading of this Judgment with any uncertainty as to those findings.
At various points in the proceedings I have made clear that findings as outlined above were contemplated especially as regards a positive finding that Mr Rigg has not abused X. Such a finding is urged upon the Court by Mr Rigg's Counsel and is not resisted by Ms Stilwell or the Independent Children’s Lawyer.
Following the completion of Ms Stilwell’s cross-examination, an “ordeal” spread across five days during which the proceedings were adjourned on a part heard basis, and again at the completion of all evidence, I had commented to the parties and the Independent Children’s Lawyer that, subject to such submissions as might be put, the evidence, (at each of those points), appeared to support findings as outlined above and that, in those circumstances, submissions would be required as to why Orders would not be made which would see both parents spending substantial and significant unsupervised time with X.
Notwithstanding such clear indications, indications given with the clear caveat that, save for a positive finding that Mr Rigg had not perpetrated abuse of X, that all submissions would be duly considered, the matter has not resolved and the parties have determined to continue their litigation to finality and to Judgment delivered by this Court.
This is not the first Judgment delivered in these proceedings. It is the fourth. Few, if any, substantial decisions have been made by these parents consensually during this round of litigation. The intensity with which the parties have sought to litigate the matter is somewhat extraordinary and may well have been contributed to by a number of factors.
On one level the intensity of this litigation might be explicable in light of the allegations in which the genesis of the proceedings resides. Certainly, Mr Rigg has been strident in his desire to “clear his name” and to disprove the allegations directed towards him. Certainly, this desire has been apparent and addressed by various aspects of the evidence. It is an entirely understandable and explicable desire. It is also a desire which is suggested by Ms Stilwell, and again addressed by various aspects of the evidence, to have led to a rigidity in Mr Rigg’s attitudes if not a punitive or revengeful attitude towards Ms Stilwell.
The absence of any committed relationship between these parents, either prior to or following X’s birth, and the resulting absence of shared parenting goals, vastly differing parenting styles and manifest lack of trust between these parents has also, I have no doubt, contributed to the fervour with which the proceedings have been conducted and especially the conduct of the 12 day Trial, concluding the proceedings.
The above comments are not intended to impugn the motive of either parent nor to suggest that these parents have been incapable of resolving any issue. A number of interim arrangements have been put in place by consent or at least largely so. However, on each occasion that the Court has been invited to make Interim Orders by consent there have remained issues for determination by the Court. This pattern continued until the very last day with the parties tendering a Minute of “largely agreed” arrangements for X’s time with each parent at the conclusion of the 12th and final day of Trial and seeking the Court’s determination of those issues which remained unresolved and unagreed. As no time was available for any such determination (leaving aside the lack of desirability of such continuous and sequential Interim determinations and the absence of any Application for Interim relief before the Court), no Orders were made with the potential for significant disadvantage to X arising from the inability of these parents to co-operate, compromise or make relatively simple and straightforward decisions together.
In X’s short life not less than eight separate Interim Orders had been made by the Court whether by consent, following presentation of evidence and contested determination or a combination of the two. Final Orders were also made on one prior occasion and the Orders to be made at the conclusion of this Judgment will represent the second Final determination of proceedings between these parents in X’s short life.
History of proceedings
This Judgment and the Orders made thereby will conclude this tranche of litigation. This is the second tranche of proceedings between these parents.
The first tranche of proceedings was commenced by an Application Initiating Proceedings filed by Mr Rigg on 24 August 2011. At that time X was 10 months of age.
The first tranche of litigation did not involve the same intensity of conflict as this tranche of proceedings.
The first tranche of proceedings came before the Court expeditiously and following an Application for abridgement of time. At the first Court event the parties were assisted by a Family Consultant at a Child Dispute Conference and Interim Orders were made by consent, investing the parents with equal shared parental responsibility, providing for X to live with her father for specified periods (varying between 2 to 6 hours at a time and for three occasions per week) and for X to live with her mother at all other times.
Further Interim Orders were made by consent 21 February 2012. Those Orders continued the frequency of time that X spent with her father each week and increased those periods by some hours on each occasion.
On 26 November 2012 (the second occasion that the proceedings came before the Court) further Interim Orders were made by consent and which provided that:
a)Mr Rigg and Ms Stilwell would have equal shared parental responsibility;
b)X would live with her mother; and
c)X would spend time with her father each Sunday from 8am until 8pm, each Monday from 8am until 4pm and each Tuesday and Thursday from 4pm until 8pm.
The further Interim Orders made 26 November 2012 suggested some cause for optimism. The Orders required the parents to meet in February 2013 to review arrangements and with the clear intent, as expressed in the Orders, for overnight time to then commence subject to X’s “adjustment”. In any event, the Orders provided for the introduction of overnight time (Tuesday afternoon until Wednesday morning) from July 2012 and with further provision compelling the parties to meet and review those arrangements and with a view to further increasing X’s overnight stays.
On 30 August 2013 the first tranche of proceedings was concluded with Final Orders made by consent. Those Orders, again, provided for the parents to have equal shared parental responsibility, for X to live with her mother and for X to spend time with her father for a non-overnight period each Sunday, Tuesday, Thursday and for periods on what might be described as “special events”.
It is noteworthy that the Final Orders made 30 August 2013 reduced the amount of time that X was to spend with her father, Mr Rigg, from that provided by the previous Interim Orders. This would appear, however, to have reflected the ability of these parents at that time to co-operate and make joint decisions in X’s best interests.
This tranche of proceedings was commenced by an Application Initiating proceedings filed by Mr Rigg on 15 July 2014. That Application was, again, the subject of an Application for abridgement of time.
The precipitating event for this tranche of proceedings was the cessation of time between X and her father following upon events 18 June 2014.
On the first occasion that Mr Rigg's Application came before the Court, namely 14 August 2014, an Interim Hearing was conducted and the first of four Judgments in these proceedings was delivered. As a consequence of that Interim Hearing the Final parenting Orders made 30 August 2013 were suspended and in their place a number of Interim Orders made including:
a)An Order pursuant to section 61C of the Family Law Act 1975 for joint and several parental responsibility;
b)Orders providing for X to spend time with her father each Sunday from 10am until 5pm and each Thursday from 2pm until 6pm, subject to that time occurring in the presence and under the supervision of one or other of Mr Rigg’s mother and sister;
c)A variety of restraints including a prohibition upon X attending upon and engaging with any sexual abuse counsellor or being questioned regarding allegations of abuse (save by the Independent Children’s Lawyer, Police Officers or Case Workers from the Department of Family Community Services).
The proceedings next came before the Court 31 October 2014. On that date the Independent Children’s Lawyer appeared for the first time. A number of Orders, largely procedural, were made by consent including an Order commissioning a Part 15 Report to be prepared by Dr W. The matter was otherwise fixed for Trial as a three day fixture.
On the first day of Trial, 15 July 2015 a contested Application for adjournment was dealt with. The adjournment Application arose as a consequence of Mr Rigg having filed an Amended Application in the week prior to the scheduled hearing and that Amended Application having been filed after each party had filed all Affidavit material relied upon by them.
The Amended Application sought that X pass to live with Mr Rigg. At that time Mr Rigg had sought no such relief and had, rather, conceded a predominance of care to be provided to X by Ms Stilwell.
The adjournment Application was successful, although a full day of hearing occurred. The determination of the adjournment Application resulted in the second Judgment delivered in these proceedings.
The matter was then listed as a five day fixture 28 – 30 September 2015 and 1 – 2 October 2015. The matter was not completed within that time and was further adjourned for a further three day fixture 1 – 3 December 2015. The matter occupied those three days. At the conclusion of that time the proceedings were, again, adjourned part heard to an 11th day of hearing.
On the further date fixed for the matter (15 January 2016) a contested Application to reopen (by Ms Stilwell) was heard and determined. The hearing and determination of that Application occupied the entire day and resulted in the delivery of the third substantial Judgment delivered in these proceedings. The matter was further adjourned for a final (12th) day of hearing. The matter could not proceed on the allocated date due to my illness but, with the cooperation of Counsel for each of the parties and the Independent Children’s Lawyer, a further date was expeditiously found to complete the matter 27 June 2016, albeit by video link between the Albury and Parramatta Registries. Indeed, all but five days of the Trial have been conducted by video link between Albury and Parramatta.
Notwithstanding that these proceedings have required a 12 day hearing the matter has been completed in under two years from the date of filing (albeit that reserved Judgment has taken the matter beyond its second anniversary). Whilst this is a significant period it is, in light of the Court’s present resources, a relatively expeditious conclusion of the matter.
The completion of the matter has occurred at expense to other litigants, whose matters have been displaced or marked not reached, as well as at great expense to the parties themselves and, more importantly, young X. It is after all young X’s childhood which has been dominated by if not sacrificed to this litigation.
Prior to the commencement of the Trial and shortly after release of Dr W, X resumed unsupervised time with her father and including overnight periods of time. This was initially arranged between the parties (no doubt with substantial assistance from their lawyers and the Independent Children’s Lawyer).There have been incremental increases in X’s time arrangements with her father throughout the conduct of the Trial. Those variations have been largely consensual, although the Court has been called upon to determine a number of contentious disputes.
Material considered
In dealing with these proceedings the following material has been considered.
In the case of Mr Rigg, I have read and considered the following:
a)Amended Initiating Application filed 3 July 2015;
b)Affidavit of Mr Rigg sworn or affirmed 3 July 2015 and filed the same date;
c)Affidavit of Mr Rigg sworn or affirmed 11 September 2015 and filed the same date;
d)Affidavit of Ms A sworn or affirmed 2 July 2015 and filed 3 July 2015;
e)Affidavit of Ms P sworn or affirmed 3 July 2015 and filed the same date;
f)Notice of Risk filed 21 September 2015.
In the case of Ms Stilwell, I have read and considered the following documents:
a)Amended Response filed 24 June 2015;
b)Affidavit of Ms Stilwell sworn or affirmed 9 September 2015 and filed 11 September 2015;
c)Further Affidavit of Ms Stilwell sworn or affirmed 23 June 2015 and filed 24 June 2015;
d)Affidavit of Ms E sworn or affirmed 8 July 2015 and filed the same day;
e)Further Affidavit of Ms E sworn or affirmed 23 September 2015 and filed the same day;
f)Further Affidavit of Ms E sworn or affirmed 17 February 2016 and filed 18 February 2016;
g)Notice of Risk filed 13 August 2014.
In addition to the Affidavit material of the parties, I have also received into evidence the Report of Dr W dated 23 January 2015. The Report is marked Exhibit A.
Each of the deponents of Affidavits together with Dr W have been cross-examined.
There are a substantial number of Exhibits in these proceedings comprising:
a)Exhibit A – the Report of Dr W dated 2 February 2015 and released to the parties by an Order made in Chambers 2 February 2015;
b)Exhibit B – conference of Experts notes;
c)Exhibit F1 – a bundle of statements from Optus for the period 7 July 2015 to 6 August 2015 addressed to Mr Rigg;
d)Exhibit F2 – correspondence from (omitted) Family Care regarding waiting times for services provided;
e)Exhibit F3 – a communication book;
f)Exhibit F4 – 2 Police Statements from Ms Stilwell;
g)Exhibit F5 – correspondence addressed to Nevin Lenne & Gross from Robb & Associates Solicitors Pty Ltd dated 10 July 2015 and correspondence from Nevin Lenne & Gross addressed to Robb & Associates Solicitors Pty Ltd dated 10 July 2015;
h)Exhibit F6 – certain records from the Department of Family and Community Services dated 2 September 2014;
i)Exhibit F7 – certain records from the Department of Family and Community Services for the period 11 February 2015 to 12 February 2015;
j)Exhibit F8 – paragraph 36 of the Affidavit of Ms Stilwell sworn or affirmed 13 August 2014 and filed the same day;
k)Exhibit F9 – certain records from (omitted) Community Health Centre as tagged;
l)Exhibit F10 – certain records from NSW Police as tagged;
m)Exhibit F11 – certain records from the Department of Family and Community Services;
n)Exhibit F12 – paragraph 36 of the Affidavit of Ms Stilwell sworn or affirmed 14 September 2011 and filed 19 September 2011;
o)Exhibit F13 – further records from the Department of Family and Community Services;
p)Exhibit F14 – diary of Ms Stilwell;
q)Exhibit F15 – paragraph 30 of the Affidavit of Ms Stilwell sworn or affirmed 13 August 2014 and filed the same day;
r)Exhibit F16 – paragraph 19 of the Affidavit of Ms Stilwell sworn or affirmed 13 August 2014 and filed the same day;
s)Exhibit F17 – page 37 of the Transcript of the proceedings 30 September 2015;
t)Exhibit ICL1 – further notes from conference of Experts;
u)Exhibit ICL2 – a letter of instruction addressed to Mr G by the Independent Children’s Lawyer dated 22 September 2015 seeking the provision of a Report regarding X, such Report being attached to the letter and dated 24 September 2015;
v)Exhibit ICL3 – certain records from the Department of Family and Community Services for the period 19 September 2014 to 26 September 2014;
w)Exhibit ICL4 – certain records from the Department of Family and Community Services for the period 13 November 2014 to 20 November 2014;
x)Exhibit ICL5 – certain records from the Department of Family and Community Services for the period 8 December 2014 to 12 December 2014;
y)Exhibit ICL6 – further records from the Department of Family and Community Services for the period 25 February 2015 to 26 February 2015;
z)Exhibit ICL7 – a bundle of correspondence between the Independent Children’s Lawyer and (omitted) Family Care regarding supervised visits;
aa)Exhibit ICL8 – notes from Mr G;
bb)Exhibit ICL9 – SDM Safety Assessment Decision Report;
cc)Exhibit ICL10 – a file note record from the Department of Family and Community Services for the period 31 July 2014 to 1 September 2014;
dd)Exhibit ICL11 – material produced by (omitted) Community Health Centre;
ee)Exhibit ICL12 – clinical notes produced by Dr N for the period 25 February 2013 to 14 October 2013;
ff)Exhibit ICL13 – a brief of evidence from NSW Police;
gg)Exhibit ICL14 – material produced by (omitted) Early Childhood Centre;
hh)Exhibit ICL15 – email correspondence from (omitted) Family Care addressed to the Independent Children’s Lawyer dated 5 June 2015;
ii)Exhibit ICL16 – correspondence addressed to Mr G from the Independent Children’s Lawyer dated 19 August 2015;
jj)Exhibit M1 – correspondence dated 18 August 2011 forwarded by Ms Stilwell’s attorneys to Mr Rigg’s attorneys;
kk)Exhibit M2 – a patient record for X from (omitted) Hospital;
ll)Exhibit M3 – (omitted) Early Learning Centre sign in sheets;
mm)Exhibit M4 – (omitted) College Enrolment Application;
nn)Exhibit M5 – a bundle of email communication between the Independent Children’s Lawyer and the attorneys for the parties dated 24 November 2014 together with a psychological Report dated 19 November 2014 from a psychologist with whom Ms Stilwell has previously consulted, namely, Dr B;
oo)Exhibit M6 – a print out of the web page (omitted);
pp)Exhibit M7 – material from the Child Support Agency;
qq)Exhibit M8 – a record of consultations from a doctor with whom Mr Rigg has previously consulted, namely, Dr I;
rr)Exhibit M9 – email communication between the parties dated 29 May 2014,
ss)Exhibit M10 – correspondence addressed to Robb & Associates Solicitors Pty Ltd from Nevin Lenne & Gross dated 16 September 2015 regarding X’s schooling;
tt)Exhibit M11 – paragraphs 37-38 of the Affidavit of Mr Rigg sworn or affirmed 22 August 2011 and paragraph 81 of the Affidavit of Ms Stilwell sworn or affirmed 14 September 2011;
uu)Exhibit M12 – correspondence between the attorneys for the parties dated 5 August 2015 and 30 November 2015;
vv)Exhibit M13 – further correspondence addressed to Robb & Associates Solicitors Pty Ltd from Nevin Lenne & Gross dated 5 August 2015 and responding correspondence from Robb & Associates Pty Ltd dated 2 September 2015;
ww)Exhibit M14 – correspondence between Ms Stilwell’s attorneys and Ms E.
In addition, a number of Exhibits have also come into evidence on 15-16 July 2015 and have been considered by me. These comprise:
a)Exhibit F1 – correspondence addressed to Nevin Lenne & Gross from Robb & Associates Pty Ltd dated 2 July 2015;
b)Exhibit F2 – correspondence from Robb & Associates addressed to Nevin Lenne & Gross dated 26 June 2015;
c)Exhibit F3 – notes from Dr W;
d)Exhibit F4 – material produced by Dr L as tagged;
e)Exhibit F5 – a Minute of Orders proposed by Mr Rigg;
f)Exhibit M1 – correspondence addressed to Robb & Associates Solicitors Pty Ltd dated 28 June 2015;
g)Exhibit M2 – a Minute of Orders proposed by Ms Stilwell.
Proposals of each party and the Independent Children’s Lawyer
The Independent Children’s Lawyer proposes that Orders be made in the following terms:
a)That the parents have joint and several parental responsibility pursuant to section 61C of the Family Law Act 1975;
b)That X live with her mother;
c)That X spend time with her father on a substantial and significant basis and without supervision. Specifically, the Independent Children’s Lawyer proposes that during school terms that X spend time with her father and be in his care each alternate weekend from the conclusion of school (or pre-school) Friday until the commencement of school (or pre-school) the following Monday and extending to Tuesday if a long weekend, together with a period in each intervening week from the conclusion of school (or pre-school) Thursday until the commencement of school (or pre-school) the following day. An equal sharing of school holidays is also proposed by the Independent Children’s Lawyer and with the caveat that for the 2016/2017 Christmas school holidays that time occur on a week about basis and thereafter that one half of each holiday period be allocated to each parent;
d)That Ms Stilwell continue to attend upon and consult with her counsellor Ms E with such frequency as Ms E may determine and direct and for the purpose of Ms Stilwell receiving therapeutic assistance in managing her anxiety;
e)That both parents re-engage with the Parenting Orders Program (being a Program with which both parents have previously been involved and which Program, through the enquiries of the Independent Children’s Lawyer, is able to further assist the parties);
f)That Ms Stilwell obtain a mental health care plan in X’s name so as to enable Ms Stilwell to consult a child psychologist to help her address X’s separation anxiety and oppositional defiant behaviours as identified by the Part 15 Report Writer Dr W and that Ms Stilwell continue to attend at such times and for such period as the psychologist might recommend. The Independent Children’s Lawyer also seeks that Mr Rigg be permitted to attend appointments with the psychologist should his attendance be requested by the psychologist.
Overall, the arrangements proposed by the Independent Children’s Lawyer would see X in her mother’s care for ten days of each school term fortnight and in her father’s care for four days of each school term fortnight.
Ms Stilwell joins in with and adopts the proposals of the Independent Children’s Lawyer, save and except that Ms Stilwell proposes that the parents would have and practice equal shared parental responsibility.
Mr Rigg seeks that he be allocated sole parental responsibility for X and that X live with him. Mr Rigg proposes that time between X and Ms Stilwell would initially occur on a supervised basis at a Contact Centre and that this would continue for a period of up to 6 months. Thereafter, it is proposed by Mr Rigg that X would spend time with Ms Stilwell in accordance with the Independent Children’s Lawyer’s proposals, albeit reversing the allocation of time (such that X would spend time with Ms Stilwell each alternate weekend and for one evening in each intervening school term week). Once unsupervised time has commenced during school terms, Mr Rigg proposes that school holiday periods would then also commence.
Chronology
Before proceeding to a more detailed consideration of the evidence in these proceedings, I propose to incorporate and adopt the chronology of events provided by the Independent Children’s Lawyer via their Case Outline document. The various events enumerated within that chronology are largely non-contentious and reflect a balanced and mutualised consideration of the evidence.
(omitted) 1982 MR RIGG (“the father”) born. Now aged 33 years. (omitted) 1982 MS STILWELL (“the mother”) born. Now aged 32 years. (omitted) 2009 Parents commence a casual sexual relationship. (omitted) 2010 Parents’ relationship ends. (omitted) 2010 Parents cohabit for about 3 weeks prior to X’s birth. (omitted) 2011 X (“X”) born. Now aged 4 years, 6 months.
Parents cohabit for about 8 weeks following X’s birth.March-May 2011 X spent short periods of time with her father each day. May 2011 X commences overnight time with the father, 2-3 nights per week. Mother is present at father’s home during overnight stays. June 2011 Mother says she contacts FRC and is advised the arrangements for X to spend time with her father are inappropriate.
Mother ceases overnight time and X spends short periods of time with her father every 2 days, at the mother’s home.
4 August 2011 Father advises the mother that he no longer agrees to spending time with X under the mother’s supervision.
Save for a visit on Father’s Day, X does not spend time with the father until 19 September 2011.
23 August 2011 Father commences parenting proceedings at Albury FMC (“the first proceedings”). 19 September 2011 First return date of the first proceedings. After parents attend upon Family Consultant Ms D, consent interim orders made providing, inter alia:
· Matter listed for interim hearing 23/02/12 at 10 am.
· Parents to have ESPR.
· X to spend time with the father for a period of 4 weeks:
o Each Tuesday from 2 pm until 4 pm;
o Each Thursday from 8 am until 10 am; and
o Each Sunday from 1 pm until 5 pm.
· Thereafter:
o Each Tuesday from 2 pm until 5 pm;
o Each Thursday from 8 am until 11 am; and
o Each Sunday from 11.30 am until 5.30 pm.
· X to live with the mother at all other times.
Parents to enrol in and complete POP.
21 February 2012 Further interim consent orders made by FM Henderson in Chambers providing, inter alia:
· Parents to have ESPR.
· X to spend time with the father commencing 12/02/12:
o Each Sunday from 8 am until 6 pm;
o Each Tuesday from 1 pm until 7 pm;
o Each Thursday from 8 am until 1 pm.
26 November 2012 Second Court listing of the first proceedings. Further interim consent orders made providing, inter alia:
· Matter listed on 26/08/2013 for further mention & directions.
· Parents to have ESPR.
· X to spend time with the father commencing 18/06/12:
o Each Sunday from 8 am until 8 pm;
o Each Monday from 8 am (or when she wakes) until 4 pm;
o Each Tuesday from 4 pm until 8 pm;
o Each Thursday from 4 pm until 8 pm;
o From 16/12/12 X to commence overnight time with the father each alternate week from 10 am Sunday until 4 pm Monday, such overnight time to occur weekly from 13/01/13.
March 2013 X is toilet trained (according to the father). 30 August 2013 Third Court listing of the first proceedings. Final consent orders made providing, inter alia:
· X to live with the mother:
· X to spend time with her father:
o Each Sunday from 10 am until 2 pm Monday;
o Each Tuesday from 3 pm until 10 am on Wednesday; and
o Each Thursday from 2 pm until 6 pm;
o On special occasions;
o Upon giving the mother 4 weeks’ notice, for between 3 and 5 days for a holiday.
· X to communicate with the parent with whom she is not living / spending time at 6.30 pm each day.
· Arrangements to be reviewed at mediation after 12 months.
From early 2014 Mother says she noticed behavioural changes in X including sucking her fingers, stuttering crying that she missed [the mother], and bed wetting. 2 February 2014 Mother alleges that X is hysterical and does not want to go on contact with the father.
March 2014 Father commences a relationship with Ms A. Easter 2014 X is present when during parents’ dispute over missing items of clothing.
Mother alleges that father would not look at or speak to her at changeovers following this incident.24 April 2014 Mother’s first appointment with Ms E, Counsellor. 27 April 2014 X meets Ms A for the first time. May 2014 Mother and X move from (omitted) to (omitted). 31 May 2014 Mother says that X is distressed about spending time with the father. June 2014 Father commences cohabitation with Ms A. 17 June 2014 X spends the night with her father. Father’s partner Ms A is present from 7.30 pm and spends the night at the father’s home.
X is readied for bed by the father at 8.15 pm and is asleep, he says, by 8.30 pm.
18 June 2014 Father returns X to “(omitted)” ELC at 10.30 am.
Email exchange between parents regarding X’s behaviour.
While finishing her dinner, X ask the mother to put cream on her bottom. X tells the mother that “daddy touched my bottom”… Mother asked if father has touched her to put cream on her and whether she had told him it was sore. X replied “no”. Mother asked how the father had touched her, and X “stood up, pulled down her pants and knickers and opened up her vagina, placing her finger on her clitoris”.
Mother asks X what the father said when he was touching her and X replied, “He said I could touch his bottom if I wanted but I said no”.
Mother telephones MGM and asks X to tell MGM what she had said to mother. X said to MGM, “Daddy touched me on my bottom”.
Mother facilitates X’s ordinary telephone contact with the father. She showers X and gets her ready for bed.
Mother contacts Police and 2 officers attend her home at 9 pm. The police officers speak to the mother. They arrange for X to undergo a medical examination at (omitted) Hospital (“(omitted)”), at 10 pm. X is examined by the (male) on-call emergency doctor and a paediatric registrar and is referred to the Sexual Assault Service.
Constable Ms K makes a report to FACS and takes out a provisional AVO for X’s protection from the father.
19 June 2014 Father served by Police with provisional AVO for X’s protection from him.
Matter is referred to (omitted) JIRT. X is interviewed by Detective Mr G and FACS Caseworker Ms M at 11 am that day.
Detective Mr G informs the mother that the Police would not be charging the father “due to lack of hard evidence” but that the Police would pursue a permanent AVO against the father.
23 June 2014 AVO proceedings listed at Albury LC. Father consents to continuation of provisional order, and an order that he not approach within 50 metres of X, on a without admission basis, after obtaining legal advice.
Late June / early July 2014 Mother video records her conversation with X about the July 2014 father touching her bottom, allegedly on Detective Mr G’s advice.
July 2014 Father stops paying child support for X and contributing to her school fees.
15 July 2014 Father commences parenting proceedings at Albury FCC.
18 July 2014 AVO proceedings listed at Albury LC. AVO varied to permit contact between the father and the mother or X except though his legal representative or whilst arranging / exercising contact as agreed in writing or authorised by the AVO or FLA orders.
4 August 2014 AVO proceedings listed at Albury LC. Variations made on 18 July 2014 removed.
13 August 2014 Mother files Response and Notice of Child Abuse or Family Violence or Risk of Family Violence.
14 August 2014 Matter listed for interim hearing at Albury FCC. Orders made inter alia:
· Suspend all previous parenting orders.
· X spend time with her father from 10 am until 5 pm each Sunday and 2 pm until 6 pm each Tuesday.
· X’s time with the father to be supervised by Ms P and / or Ms C.
· X shall live with the mother at all other times.
· Father may telephone X between 6 pm & 6.30 pm on each day he has not spent time with her.
· Parties injuncted from:
o Denigrating the other parent, or allowing others to do so in X’s presence;
o Discussing the proceedings or issues in the proceedings, or allowing others to do so in X’s presence;
o Questioning X about her time with the other parent including questions about the alleged sexual assault by the father;
o Taking X to see any counsellor or psychologist or any person for the purpose of interviewing her or providing her with therapy other than as directed by the ICL, Police, FACS or the Court.
· Parties are injuncted from pursuing further sexual assault counselling for X from Ms T at (omitted) Community Health.
· An ICL is appointed for X.
· Proceedings adjourned to 31 October 2014 at 9.30 am.
15 August 2014 Father telephones X. Mother tries to facilitate the call, but X is sobbing. 17 August 2014 X’s first supervised “time with” the father. Mother alleges that X told her “Daddy touched my bottom” and “Nanna was at work and Ms R was at the supermarket…”
Father is contacted by FACS about these disclosures.
September 2014 Father says he “steps away” from his (omitted) business. His role is replaced by his (employee omitted).
17 September 2014 (Wednesday) Mother alleges X told her that her bottom was sore “because daddy touched me again”, and that Ms R “was at the supermarket”.
Mother makes a report to the Police. The officer to whom she spoke calls her back later and advises he is satisfied the visit was properly supervised. The officer refers mother to DOCS (sic), to whom the mother makes a report.
30 September 2014 Mother resumes counselling with Ms E.
October 2014 Father ceases contributing to X’s school fees.
31 October 2014 Matter listed at Albury FCC. Orders made, providing
inter alia:
· By consent:
o For the appointment, of Dr W, Child and Family Psychiatrist, as Court expert.
o For X to spend time with her father on Christmas Day and her birthday.
· Matter set down for final hearing on 15-17 July 2015 and direction made to prepare the matter for final hearing.
9 November 2014 X spends supervised time with the father. Father’s lawyer received correspondence from the mother’s lawyer alleging that X was screaming and crying and told her “Daddy touched me again” and that her genitals were red.
Mother took X to (omitted) Hospital for a medical examination and a report was made to FACS.
28 November 2014 Consent orders made by Judge Harman in chambers providing inter alia:
· Injuncting the mother from arranging to have X medically examined to determine whether X has been sexually abused, unless she is specifically directed to do so by a FACS caseworker.
· Mother to report any new concerns regarding X’s welfare in the father’s care to FACS’ Helpline.
30 November 2014 X spends supervised time with her father. Mother alleges that X said to her “I am going to Sydney with daddy, Ms A and Ms R on Tuesday… I am in big trouble if I tell that daddy touches my bottom”, and “daddy touched me today” and “Daddy says you can’t know”.
2 December 2014 Parents, X, Ms P and Ms A attend assessment interviews with Dr W in Sydney.
23 December 2014 Mother consults with Mr G, Psychologist, in X’s absence.
2 February 2015 Dr W’s expert report released by the Court.
19 May 2015 Mother’s lawyer’s write to father’s lawyers advising that mother accepts Dr W’s opinion “that no abuse has occurred”.
26 May 2015 Mother contacts Detective Mr G and tells him that she was “satisfied with accepting the expert’s opinion that no sexual abuse had occurred”.
27 May 2015 AVO application listed for contested hearing at Albury LC. Application for an AVO was withdrawn by the Police.
4 June 2015 Parents, their lawyers and the ICL attend a FDR conference facilitated by Legal Aid NSW. No agreement reached.
6 June 2015 Father closes his (omitted) business.
2 July 2013 By agreement, father commences spending unsupervised time with X each:
· Thursday from 1 pm until 5 pm;
· Friday from 3 pm until 7 pm; and
· Sunday from 10 am until 5 pm.
3 July 2015 Father files an amended Application seeking, inter alia, an order that X live with him.
15 July 2015 Matter listed for final hearing at Parramatta FCC via AVL to Albury FCC.
· 16 July 2015 Orders made by Judge Harman inter alia:
· Vacate trial dated 15-17 July 20915.
· Matter listed for final hearing for 5 days commencing 28/09/15 at Albury.
· Updating / amending Affidavit material to be filed by COB 11/09/15.
· PFO, X to spend time with her father each week, from such time of Wednesday as the father should collect X from pre-school until the commencement of pre-school on Friday morning.
· Ms A, Ms F of Ms C may collect X in the father’s stead.
· Additionally, X to spend time with the father from 3 pm 17/07/15 until 4 pm 18/07/15.
· Each parent may communicate with X by telephone each day between 6 pm & 6.30 pm.
· ICL has leave to provide to any psychologist consulted by the parents with a copy of Dr W’s report.
· Restraints in orders of 14/08/14 and 28/11/14 continue to operate.
21 August 2015 X consults with Mr G for the first time. 4 September 2015 X and Mother attend upon Mr G. 7 September 2015 Mother attends upon Mr G. 18 September 2015 X and mother attend upon Mr G. MGM is also present. 28 September 2015 Matter listed for final hearing at Albury FCC.
When turning to the evidence I propose to discuss that led by each of the witnesses who have assumed importance in the proceedings. I do not propose to repeat the totality of evidence that has been given.
Whilst there are significant factual controversies between the parties the majority of these can be appropriately addressed by reference to aspects of the evidence rather than its totality. I make clear that the totality of evidence identified above has been read and considered by me and the totality of evidence has exercised my mind in arriving at the findings of fact partially outlined above and which will be set out in far more detail below.
The evidence
The father Mr Rigg
As the Applicant, Mr Rigg was cross-examined first. At the conclusion of Mr Rigg’s cross-examination (including his being recalled at one point when a fresh issue, not the subject of prior evidence, arose from Ms Stilwell’s cross-examination) I am satisfied that Mr Rigg can be accepted as a credible witness.
Notwithstanding that Mr Rigg is accepted as a credible witness there are criticisms to be made of him. Those criticisms, however, might be better described as acknowledged and explicable differences as between Mr Rigg and Ms Stilwell. Some of these arise from the inherent personalities of the parents and others responsive to the facts and circumstances of the case. I will turn to these shortly.
If one were to leave aside a consideration of risk issues it is clear from Mr Rigg’s evidence that:
a)Mr Rigg is a competent and loving parent;
b)Since X’s birth Mr Rigg has played an active role in her life. There have been a number of punctuations, if they might be so described, of Mr Rigg’s active involvement with X. In fairness to Mr Rigg only one of these punctuations could be ascribed to any action or inaction on his part;
c)Mr Rigg has always desired an active role in X’s life and has sought, from a very early point in X’s life, possibly as early as three to six months of age, to spend overnight periods and substantial periods with her. This desire has been somewhat at odds with Ms Stilwell’s views as to how X’s relationship with each parent might best be developed and practiced. These dramatically different views as to time arrangements have led to substantial tensions between these parents;
d)It is also clear that Mr Rigg has, from an early point in X’s life if not proceeding her birth, desired a move to an equal shared care arrangement for X to commence no later than the time X was to commence primary school;
e)As a consequence of “differences of opinion” between Mr Rigg and Ms Stilwell as to X’s developmental needs, particularly as regards the commencement of overnight time between X and Mr Rigg in the absence of Ms Stilwell, the parties fell into significant dispute in June 2011. At that time Ms Stilwell would not permit Mr Rigg to have X in his care without Ms Stilwell being present or nearby and, as a consequence of this condition demanded by Ms Stilwell, Mr Rigg, by and large, ceased spending time with X and then did not spend time with X until Orders were made by the Court in September 2011;
f)Other than the above period, Mr Rigg has availed himself of all periods of time that have been available to him whether pursuant to agreement between the parents or Orders made by the Court;
g)Mr Rigg and Ms Stilwell had, prior to June 2014, worked cooperatively to ensure X’s relationship with each parent. This has been so notwithstanding that communication between them has, at times, been strained and/or minimal. The level of cooperation between these parents, particularly since Orders were first made September 2011, has permitted them to jointly engage with a number of services and obtain advice and assistance as well as to change arrangements in response to X’s needs and reactions. This included the introduction of overnight time and a return to day only visits when X was perceived as not coping well with the arrangement;[7]
h)Mr Rigg is presently employed although paying little Child Support. That is an issue of some real contention as between the parties, although far from dispositive of any issue of relevance in these proceedings. Also, Mr Rigg has significant debts arising from the cessation of a (omitted) business previously operated by him. The business was, I accept, impacted by these proceedings and the allegations raised therein. There is some controversy, which I need not determine, as to the extent of Mr Rigg’s present employment endeavours and income. It is clear that there have been “financial issues” between these parties, at times, involving the Child Support Agency and, at others, directly addressed between the parties, since X’s birth or shortly thereafter;
i)Mr Rigg has re-partnered and lives in a de facto relationship with his partner Ms A;
j)Mr Rigg denies all allegations raised by Ms Stilwell as to any wrongdoing on his part involving or directed towards X. The specific allegations of abuse will be addressed by me separately rather than at this point;
k)Mr Rigg is highly critical of Ms Stilwell on a number of levels. These criticisms have been directed by Mr Rigg to Ms Stilwell as well as to third parties. This has included a report by Mr Rigg to the Department of Family and Community Services and a clear “cataloguing” by Mr Rigg of his complaints through interviews with the Part 15 Report Writer Dr W. Significantly this has included comments made by Mr Rigg, and I accept made by him, to Mr G suggesting that, “there is a special place in hell for Ms Stilwell for what she has done [raising allegations of sexual abuse]” and that he, Mr Rigg, is currently “…so angry with her [Ms Stilwell] he wants her to lose X for a month or so as a wakeup call that she needs to stop asking X questions about this stuff”;
l)Further, Mr Rigg had been clear, during his cross-examination and in response to questions from the Independent Children’s Lawyer, that Ms Stilwell needs “to be punished” for the allegations that she has raised (as well as other perceived misdeeds) and that this was the only way that she would “learn”;
m)Mr Rigg is presently spending time with X four nights per fortnight during school terms and for one half of each short school holiday period. X is coping perfectly well with that arrangement and deriving great benefit from the time that she spends with her father and, through him, various extended family members, including Mr Rigg’s partner Ms A.
[7] This is referred to in notes produced by a psychologist, Dr N, as being in response to X being “feral” when overnight time was first introduced.
I am satisfied that aspects of the above evidence causes some concern, as the Independent Children’s Lawyer in particular submits, that Mr Rigg has developed “an attitude” towards Ms Stilwell that is somewhat hostile, rigid, punitive and vengeful. That said, however, I can well understand that Mr Rigg would feel some sense of outrage for that of which he has been accused (or perceives that he has been accused) and might thus engender, harbour and express such views.
That such views and attitudes are explicable does not, however, make them appropriate. The formation and expression of such views most assuredly does not translate to or reflect focus upon X’s needs and interests. Nor does the holding and expression of such views advance X’s best interests or her positive relationship with either parent.
As regards the allegations of abuse levelled against Mr Rigg, it is noteworthy that he has not been cross-examined with respect to any portion of the evidence relating to those allegations. In this regard I cannot do other than accept the submission put on behalf of Mr Rigg that:
… The father was asked no questions, nor challenged, in any way that… He had abused X… He had in any way acted towards or touched X in an inappropriate fashion… Or… There was any risk deriving from his care of X.
As Counsel for Mr Rigg has been at pains to point out, the absence of cross-examination of Mr Rigg is not and could not be a criticism of those representing the interests of Ms Stilwell. It is entirely consistent with Ms Stilwell’s position as stated at the opening of the case, that the Court would not be asked to make a finding that abuse had occurred or that there was an unacceptable risk of abuse occurring.
Both Counsel for Ms Stilwell and those instructing Counsel have represented Ms Stilwell’s interests competently and diligently and to a high standard not only as regards the service rendered to Ms Stilwell but in recognition of and in compliance with obligations owed by legal practitioners to the Court.
The absence of cross-examination of Mr Rigg with respect to these pivotal allegations does, however, invoke the rule in Browne & Dunn (1893) 6 R 67 (HL) and requires some comment.
One is reminded of the comments of Lord Herschell in Browne & Dunn:
… I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in crossexamination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do so if such questions had been put to him, the circumstances which it is suggested to indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit… I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making explanation which is open to him; and as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses.
In this case the suggestion that a witness “is not speaking the truth on a particular point” relates to Mr Rigg’s denial of wrongdoing. Mr Rigg’s evidence, in the form of denial, is entirely unchallenged. I accept Mr Rigg’s denial. To do otherwise in the circumstances would deny due process to Mr Rigg and, more fundamentally, would be contrary to the weight of evidence.
I am also conscious of the comments of Wells J in Reid v Kerr (1974) 9 SASR 367 at 373-4 which I consider the most apt and appropriate description of the difficulty that arises in this case and in the interpretation and application of the rule in Browne & Dunn being as follows:
…a judge… is entitled to have presented to him... issues of fact that are well and truly joined on the evidence; there is nothing more frustrating to a tribunal of fact than to be presented with two important bodies of evidence which are inherently opposed in substance but which, because Browne & Dunn has not been observed, have not been brought into direct opposition, and serenely past one another like two trains in the night.
Irrespective of the “beliefs” of Ms Stilwell regarding X’s possible abuse by her father (and those “beliefs” are of separate significance and importance in light of the case presented by Mr Rigg and will be considered in a discussion of the evidence of the various professionals) I am not satisfied that the evidence could safely or fairly be relied upon to establish abuse.
Ms Stilwell has not urged that any finding of unacceptable risk would be made by the Court. No such finding could be made in light of the state of evidence. Further, I am satisfied (and Counsel for Ms Stilwell indicated that they would not be heard against the proposition) that the evidence would support a positive finding that no abuse has, in fact, occurred. The Browne& Dunn inference that is clearly available, arising from the absence of cross-examination, would lend further weight to the availability of that finding.
Based upon an acceptance of Mr Rigg’s evidence, I have no concern that Mr Rigg would be other than able to meet X’s day-to-day physical needs.
I have some reservation as regards Mr Rigg’s capacity to meet or fully meet X’s emotional needs if X were to reside in his full-time care. Those concerns must ultimately be balanced with similar concerns held with respect to Ms Stilwell’s capacity to which I will turn shortly.
I do not propose to discuss Mr Rigg’s evidence in further detail at this time. I will, however, return to Mr Rigg’s evidence more fully through a consideration of the Part 15 Report.
Ms P
Ms P was required for cross-examination. No serious challenge was put to the evidence of Ms P and I accept her evidence as credible.
Ms A
Ms A was required for cross-examination. No serious challenge was put to the evidence of Ms A and I accept her evidence as credible.
Ms Stilwell
Ms Stilwell was cross-examined at length. The cross-examination of Ms Stilwell occurred across and occupied five days.
At the conclusion of Ms Stilwell’s cross-examination, I am satisfied that Ms Stilwell can be accepted as a credible witness. This is so notwithstanding the submissions put on behalf of Mr Rigg that Ms Stilwell would be rejected as a witness of truth. I do not accept that submission.
I am satisfied that Ms Stilwell has been “misguided” in accepting and interpreting certain statements made by X as indicative of X having been sexually abused by Mr Rigg (or for that matter by any person). I will articulate the reasons for my belief that Ms Stilwell has been misguided through a discussion of the Part 15 Report and other evidence including the professional evidence.
If one were to leave aside a consideration of risk issues it is clear from Mr Rigg’s evidence that:
a)Ms Stilwell is a competent and loving parent;
b)Since X’s birth Ms Stilwell has played an active and predominant role in her life;
c)Ms Stilwell has always desired an active role in X’s life and has, at all times, sought to maintain an active and positive relationship between X and Mr Rigg. I am satisfied that a finding in this regard is supported by the totality of evidence. It is fundamental to the case of Mr Rigg that Ms Stilwell does not and has never supported a positive relationship between X and her father. Thus, the issue warrants further attention;
d)There have been significant “differences of opinion” between Mr Rigg and Ms Stilwell as to X’s developmental needs, particularly as regards the commencement of overnight time between X and Mr Rigg. Notwithstanding these differences, however, the parties were, by and large, able to consensually resolve arrangements between them at least until June 2014. Further, notwithstanding the absence of any committed relationship between these parents X had, from her birth, commenced to spend regular and frequent time with both parents. The parents, at different times, may have been in active dispute as to how much time should occur and in what configurations. But time has, with two significant disruptions (one of which was instigated by Mr Rigg, albeit in reaction to Ms Stilwell’s insistence on her presence), always occurred and has always been supported by Ms Stilwell;
e)A significant disruption in X’s relationship with her father occurred in June 2011. At that point in time Mr Rigg was somewhat insistent that X was of an age whereby she could begin to spend overnight time with him and begin a transition towards the shared care arrangement which Mr Rigg ultimately sought to achieve by the time X commenced school. Ms Stilwell appropriately sought advice regarding an appropriate arrangement. At that time the advice that Ms Stilwell received, perhaps somewhat mischievously, obviated against her agreement to Mr Rigg’s proposals. Indeed, based upon the advice that she received, Ms Stilwell became concerned that X should not be away from her care at all or at least not for any significant period. I am not satisfied that reliance by Ms Stilwell upon this advice, whilst the advice was perhaps unfortunate and Ms Stilwell misguided, demonstrates a desire by her to “interfere” in X’s relationship with the father. Ms Stilwell sought and then relied upon the advice as an anxious and inexperienced first time mother;
f)At that time (June 2011) Ms Stilwell would not permit Mr Rigg to have X in his care without Ms Stilwell being present and, as a consequence of this condition demanded by Ms Stilwell, Mr Rigg, by and large, ceased spending time with X and then did not spend time with X until Orders were made by the Court September 2011;
g)Other than a two month period, from 18 June 2014, and until Orders were made by this Court 14 August 2014, Ms Stilwell has complied with such Orders as have been in force regarding X’s care from time to time. In the period June – August 2014 the allegations, which have assumed such importance in these proceedings, were the subject of investigation by Police and the Department of Family Community Services;
h)Mr Rigg and Ms Stilwell had, prior to June 2014, worked cooperatively to ensure X’s relationship with each parent. This has been so notwithstanding that communication between them has, at times, been strained and/or minimal. The level of cooperation between these parents, particularly since Orders were first made September 2011, has permitted them to jointly engage with a number of services and obtain advice and assistance and to change arrangements in response to X’s needs and reactions. This included the introduction of overnight time and a return to day only visits when X was perceived as not coping well with the arrangement;
i)Ms Stilwell is not presently employed and, as a consequence, experiences a number of financial disadvantages and deprivations. These are not aided by the absence or relative absence of Child Support or other financial assistance from Mr Rigg;
j)Ms Stilwell presently has X in her care for 10 nights per fortnight during school terms and for one half of each short school holiday period. X is coping perfectly well with that arrangement and deriving great benefit from the time that she spends with each of her parents.
Ms Stilwell’s evidence, indeed the totality of evidence, demonstrates to my satisfaction that Ms Stilwell can appropriately be described as a somewhat “anxious parent”. There is some real controversy on the evidence as to whether this anxiety arises from pre-morbidity, is reactive to situational and environmental stressors or a combination of the two.
I do not seek to be overtly critical of Ms Stilwell in describing her as a somewhat “anxious parent”. It is a reality which Ms Stilwell would appear to accept. It is a reality that is, to a large extent, unsurprising. Ms Stilwell is a young first time mother. X has been conceived in a relationship somewhat flippantly conceded by Mr Rigg as noncommittal, sexually based and loveless. It is a relationship, as Ms P has described it of “friends with benefits”.
I am critical of neither Mr Rigg nor Ms Stilwell for the circumstances of their relationship. It is entirely a matter for them. No judgement is made, moral or otherwise, of these parents. It must be acknowledged, however, that the circumstances of the relationship, absent any commitment to the relationship as a loving union let alone to its endurance as an intact family unit, would bring its own stresses for both parents and especially for Ms Stilwell who was, at least until July 2015 when Mr Rigg's Application was amended to seek that X pass to live with him, the conceded predominant caregiver for X.
The evidence makes clear, leaving aside or perhaps in addition to the stresses arising from the circumstances of the noncommittal relationship between the parents, that these parents and especially Ms Stilwell experienced difficulties with X’s care from her birth. These difficulties included:
a)Substantial difficulties with breastfeeding which required professional assistance and intervention and saw Ms Stilwell’s attempts at breastfeeding end when X was possibly as young as one month of age;
b)Difficulties with X sleeping. Whilst Mr Rigg is fundamentally critical of Ms Stilwell and attributes responsibility for these difficulties, or their poor management, to Ms Stilwell, it is clear that the difficulties arose at a very early stage and that they were difficulties of which both parents were aware. To their credit, both parents were involved in seeking solutions to these problems;
c)Whist Mr Rigg is critical of Ms Stilwell for failing to follow the guidance and advice provided by professionals (which criticism would appear to have been accepted by Dr W) the totality of evidence suggests that Ms Stilwell was compliant and able to obtain some real assistance from the services that she had sought out (including, in the case of a (omitted) sleep clinic, Ms Stilwell having sought out and attended a service and invited and encouraged Mr Rigg to also attend, albeit that Mr Rigg, due to work commitments, did not attend);
d)X’s behaviour was initially unsettled and challenging. Ms Stilwell is substantially criticised by Mr Rigg (and to a significant extent also by Dr W reliant upon that reported by Mr Rigg) for being less able to address challenges when they have arisen. I am satisfied that the totality of evidence suggests that such criticisms of Ms Stilwell are, if not unwarranted, inflated or exaggerated;
e)Ms Stilwell would appear to have experienced some degree of anxiety disorder preceding X’s birth. This, in combination with the above difficulties together with the substantial differences in personality and parenting style of these parents, would have, and I am satisfied did, exacerbate Ms Stilwell’s feelings of anxiety, inadequacy and depression.
It is perhaps appropriate at this point to observe the significant differences between these parents, Ms Stilwell and Mr Rigg.
The totality of evidence, and in the case of Ms Stilwell, her concession would suggest that Ms Stilwell experiences low self-esteem whereas Mr Rigg exudes great confidence.
Ms Stilwell has a somewhat fractured family of origin history. This has left Ms Stilwell with few supports (although she has a close relationship with her mother and father who live near to her) and may well have contributed to her issues of low self-esteem. Mr Rigg on the other hand has a very close family of origin, notwithstanding that his father passed at about the time that he and Ms Stilwell commenced their relationship (however that relationship might be described).
Ms Stilwell is somewhat unsure and anxious in her approach to parenting X. That is not to suggest an absence of skill, effort or diligence on her part. This is in contradistinction to the somewhat self-assured parenting of Mr Rigg who is described, in his thinking, as black and white, concrete and authoritative.
The differences in parenting style is amply demonstrated by the attitude that the parents are suggested to have displayed towards X’s early sleeping difficulties (arising when she was only some months of age). Ms Stilwell reports that she was distressed, exhausted and upset by X’s lack of sleep and difficulties in being settled. Mr Rigg was far more able to adopt an approach akin to “controlled crying” and, as reported by Ms Stilwell, to have suggested, as regards the child waking upset and requiring soothing that she “shall have to get used to it”.
Ms Stilwell is described by Dr W as being a less structured and discipline oriented parent than Mr Rigg who is described by Dr W, and conceded on Mr Rigg’s own report, as being far more rigid and authoritative.
Notwithstanding the above differences between these parents, there are some areas of important commonality between the evidence of Ms Stilwell and Mr Rigg. Foremost amongst these is the agreement of these parents, and as corroborated by the totality of evidence especially that of Dr W, that X is doing well in life and has achieved her developmental milestones. Specifically, it is reported of X that:[8]
a)She began crawling at some months of age and began to walk unaided three days after her first birthday;
b)She has good language comprehension skills and developed and demonstrated such skills at an early age;
c)Toilet training was successfully completed when X was two – 2 ½ years of age. Certainly, Ms Stilwell raises concern that X has previously, and for some time following June 2014, experienced night-time incontinence. However, those issues are described as having been relatively short lived and now well resolved;
d)She is well socialised in her pre-school placements. Whilst notes produced by each of the pre-schools that X has attended have raised some concerns regarding X (principally focused upon X’s desire to seek out adults rather than other children, being shy at first and upset when separating from her mother (and importantly from one of her teachers at pre-school)) these concerns are historical and X is reported to have quickly adjusted in such placements, both generally and on specific occasions, and has settled well into those environments.
[8] See page 21 of the Report of Dr W dated 2 February 2015.
All of the above matters give some real confidence that X is, by and large, well parented and developing satisfactorily if not quite well. That is of some real significance noting that the predominant care of X has, at all times since her birth, fallen to Ms Stilwell. It is also of some significance in light of the concerns that are raised by Dr W and advanced by Mr Rigg suggesting deficiencies in Ms Stilwell’s parenting of X. That X is developing well and achieving or exceeding her milestones would temper such criticisms if not obviate against them.
The balance of criticisms made of Ms Stilwell arise from or are connected with the allegations of sexual abuse that have dominated the focus and attention of these parents and these proceedings. It is important to consider those allegations in some detail. I propose, additionally, to consider those allegations and matters that flow from those allegations and the mother’s ongoing state of mind with respect to those allegations through a consideration of the evidence of the mother, the evidence of Dr W and the evidence of the other professionals with whom the mother and X have met.
The mother’s allegations of abuse
I do not propose to repeat the mother’s evidence verbatim. The allegations and that which arises from them is contained within the material identified above. The evidence of such allegations comprises some thousands of pages across Affidavit material, Exhibits and Transcripts.
Ms Stilwell’s evidence, which I accept, is that payment of Child Support ceased immediately upon allegations being raised June 2014 and that since that time there has been little financial assistance if any. Certainly, the various emails between these parties which are in evidence suggest a poor attitude by Mr Rigg towards his provision of financial assistance to X whilst X is in Ms Stilwell’s care and in disregard of X’s right under the International Convention on the Rights of the Child (incorporated in its totality into the objects and principles of the Family Law Act 1975) to be maintained by her parents.
Issues with respect to Child Support and financial assistance are not dispositive of this dispute. They do, however, impact negatively upon Mr Rigg’s attitude as a parent. Those criticisms go so far as to suggest an unreasonable, belligerent and punitive attitude by Mr Rigg towards Ms Stilwell which lacks child focus.
The likely effect of change in X’s circumstances
As is noted above, I am concerned that there would be negative and detrimental impact upon X of any significant change in her present circumstances.
X has, since birth, lived in the predominant care of Ms Stilwell. She has spent varying periods of time with her father and has, through the exercise of that time, and the support of her the relationship by Ms Stilwell, developed a very good and close relationship with Mr Rigg.
There is certainly significant benefit for X in maintaining and continuing a relationship with both of her parents. That is, however, best achieved through X’s continued predominant care being provided by Ms Stilwell and substantial and significant care being provided by Mr Rigg.
I accept the submissions of the Independent Children’s Lawyer that whilst X is described as being “resilient” that she would be distressed and experience significant, possibly permanent, grief if separated from her mother with whom she has a closer relationship than with Mr Rigg.
If X were to pass into the predominant care of Mr Rigg she would then experience a number of significant changes and disadvantages. I am satisfied that her close and deep relationship with her mother would be negatively impacted. I am not satisfied that her relationship with Mr Rigg would be further enhanced. Thus, there would be a net loss to X of such a change.
I am not satisfied that Mr Rigg would be able to fully, and with a generosity of spirit, support, maintain and encourage X’s relationship with Ms Stilwell. On the totality of evidence, I am satisfied that Ms Stilwell has demonstrated her ability to support and encourage X’s relationship with Mr Rigg. The assessment of Ms Stilwell’s ability to do so is made all the more remarkable as a consequence of the circumstances of X’s birth and absence of committed relationship between these parents and especially and all the more so since June 2014.
That Ms Stilwell has continued to promote the relationship (including as Dr W has noted in his Report by including Mr Rigg in decisions and providing information to him, notwithstanding the allegations that had arisen) is extraordinary and remarkable and lends support not only to the finding that Ms Stilwell supports Mr Rigg’s relationship with X but to an acceptance that her “anxieties and belief structures” the object of so much criticism by Mr Rigg, do not impede her parenting capacity.
Practical difficulty and expense
I incorporate herein the provisions of section 65DAA(5) of the Act, namely:
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
These parents live within the same township and there is no practical difficulty of a physical nature in both parents continuing an active engagement and involvement in X’s life. The proximity of residence of these parents will enable them to continue and practice a shared care arrangement with substantial and significant time spent by X with Mr Rigg as well as the involvement of both parents in all aspects of X’s life including educational, social and cultural.
The parent’s capacity to implement an arrangement for equal or substantial and significant time (or for that matter any arrangement of time) is clearly demonstrated by their ability and practice, at least an arrangement of substantial, weekly time, for some years. I have no concern whatsoever that arrangements as proposed by Ms Stilwell and the Independent Children’s Lawyer, and as proposed by the Court with some slight extension of those proposals, are entirely practical.
The capacity of these parents to communicate and resolve difficulties is problematic. The parties agree that their communication is poor. The parties agree that their communication is largely confined to email and text messages which are, themselves, infrequent and by reference to the contents of those emails as are before the Court, largely ineffective in communicating or at least in achieving any resolution of controversy.
Whilst I am not satisfied that either parent should be deprived of an opportunity to participate in decision-making for X, each parent being abundantly competent and with benefits to offer young X, I am not satisfied that it would be practical for them to make joint and consensual decisions.
I am not satisfied that, at this time, the obligations imposed by section 65DAC of the Act as regards joint consensual decision-making between parents with equal shared parental responsibility could be achieved. Whilst Ms Stilwell, with some optimism, proposes that an Order for equal shared parental responsibility should be made, I am satisfied that the best that can be achieved is an Order for joint and several parental responsibility pursuant to section 61C of the Act and as proposed by the Independent Children’s Lawyer.
I am not satisfied that the poor communication between these parents would warrant the excision of one or other parent from any parental responsibility and decision-making authority as is proposed by Mr Rigg through the allocation of sole parental responsibility.
The impact of the arrangement that I propose to Order, an arrangement of substantial and significant time in school terms and an equal sharing of school holidays, has already been addressed above. I am satisfied that the most positive impact would be derived from this arrangement and such that X would continue to live predominantly with her mother but with significant input and practice of relationship between X and her father.
Capacity of each parent
I am satisfied that this has been addressed in some detail in the above discussion.
I am satisfied that each parent is capable and has demonstrated their capacity, subject to the matters raised above, to provide for X’s needs including her emotional and intellectual needs.
There is no controversy as to the capacity of both parents to meet X’s physical and intellectual needs. Dr W has opined that it is so and neither party would appear to significantly cavil with that proposition.
I am satisfied that both parents are able to meet X’s emotional needs. I accept, as is advanced by Dr W and as is submitted by the Independent Children’s Lawyer, that Ms Stilwell would benefit from ongoing engagement with Ms E. Whilst Ms Stilwell indicates her desire and commitment to continue in that therapeutic relationship I propose, without doubting the voracity or genuineness of that which Ms Stilwell offers, to make an Order as sought by the Independent Children’s Lawyer compelling such engagement. The benefit that might be received by Ms Stilwell from ongoing counselling with Ms E is conceded by Ms Stilwell. That benefit would flow on to X by provision of less anxious and calmer parenting by Ms Stilwell rendered by the ongoing engagement of Ms E in providing assistance to Ms Stilwell, for so long as may be considered necessary and desirable, would also assist in obviating Mr Rigg’s concerns and would thus benefit X.
Maturity, sex, life style and background of X
X is a little girl of five years of age. She has, for the vast majority of her life, been parented by both of her parents who have been embroiled in litigation with each other. One would hope that this, the second tranche of proceedings in X’s short life, would be the last. The Independent Children’s Lawyer has submitted that X’s life has been “infected” with litigation. That phrase is apt.
I am not critical of Mr Rigg for having commenced this tranche of proceedings. He was left with little choice as his time with X had broken down and was unlikely, at that point in time, to resume without Court intervention. However, it has been unhelpful to X that this litigation has continued for as long as it has. That continuation of litigation and the length of Trial, 12 days of these parent’s lives, has been significantly impacted by the amendment of Mr Rigg's Application to seek Orders which, as the evidence has fallen, have appeared somewhat punitive if not unnecessary.
X should not be exposed to further dispute or conflict between her parents directly or indirectly. To seek to achieve that end as best as the Court can (ultimately it is entirely a matter for the parents), I propose to make Orders that the parties re-engage with the Parenting Orders Program and for Ms Stilwell to continue to engage with Ms E. There is very little else that this Court can do to seek to avoid future proceedings and to protect and insulate young X from the consequences of those proceedings other than this Order.
The other aspect of X’s background which may have some relevance is the absence of any lived experience of an intact family. As I have commenced these reasons so I shall conclude them. I am not critical of Mr Rigg nor Ms Stilwell for the relationship, uncommitted and unloving as it may have been, which they engaged in with each other and which has seen the birth of young X. X’s existence is a blessing to them and the community. It is ironic and sad that X’s existence has been the cause of such tension and conflict for these parents and each of them such that for nearly all of young X’s life to date these parents have been embroiled in conflict, dispute and litigation whereas they could have been enjoying the delight that is or was X’s infancy.
X’s background, the product of a transient relationship, presents real difficulties for her developing and engaging in a strong and meaningful relationship with both of her parents. These parents did not know each other long enough or well enough prior to X’s conception and birth to know each other well or to have developed trust. I have, repeatedly throughout these proceedings, been confronted with the rhetorical question “if these parties trusted each other would any of this have happened?”
At the conclusion of the proceedings the question remains unanswered. Perhaps it cannot be answered. The question has arisen in my mind, particularly as the consequence of an experience prior to appointment to the Bench and whilst participating as a trainer in the Independent Children’s Lawyers training program. On one occasion I had the privilege of co-chairing a training session with the eminent psychologist Mr V.
Mr V related a story wherein he and his wife and their children were sitting at the breakfast table when one of the young children made a comment to the effect “when you touched my bottom last night it hurt”. There was a context to that story, namely, that the child had been constipated and had required some assistance in his toileting and including somewhat vigorous wiping and cleaning which, no doubt, had been at least uncomfortable for the child, let alone parent. The story ended with Mr V expressing, “at that point I was so glad that my wife and I were not separated and that we trusted each other or I might have ended up spending three years in Court”.
Ms Stilwell was, no doubt, confronted when, on 18 June 2014, young X not only said to her words to the effect of “daddy touched my bottom and it hurt” but then demonstrated to her mother what she had meant by this, by pulling down her underpants and touching her vagina and clitoris. I do not accept that Ms Stilwell immediately believed that this was indicative of abuse. That belief, or at least its contemplation, clearly entered Ms Stilwell’s mind within a very short space of time however, and contributed to a belief subsequently inflamed by comments made to her by others including Police Officers, counsellors and Departmental case workers.
Whether Ms Stilwell will ever completely reject from her mind the possibility that Mr Rigg may have perpetrated abuse upon X or not cannot be predicted. Certainly, I have been satisfied, consistent with the positive finding made by me, that X was not, in that which X described 18 June 2014, the victim of sexual abuse by Mr Rigg. However, I am left unable to answer the above rhetorical question, other than through supposition and “guesswork” (and ultimately the question need not be answered one way or the other) as to whether all of this misery and disadvantage that has flowed to X, these parents and this family, might have been avoided simply by these parents having spent a little more time getting to know each other and developing some commonality and trust in their parenting relationship before X’s conception.
The issue in this case has nothing to do with the commitment and quality of these individual parents to their parenting of X. It is that these parents barely knew each other and barely knew anything of each other, save that which arose from their engagement in sexual intercourse, before X’s conception. With that reality in mind it is curious that these parents then seemed surprised and confused when the unplanned pregnancy leading to X’s birth required them to confront how they would co-parent especially when at that point, after the fact of conception, they realised that beyond a mutual craving for sexual gratification, they had nothing at all in common with each other.
Ms Stilwell and Mr Rigg might have given some thought to whether they wished to be parents, let alone co-parents, and if that was to be so how that would proceed and successfully occur, before the conception of their child. Not having done so, the difficulties they have faced and will continue to face, albeit with supports now in place, in co-parenting X were readily predictable.
It is submitted on behalf of Mr Rigg that “… The problem, and what has driven this litigation, has been a combination of the mother’s mental health issues, her failure to manage those issues, the impact upon X and an assessment of what those things in combination portend”. I do not accept that this is so. This submission on behalf of Mr Rigg focuses solely upon Ms Stilwell. I am satisfied that “the problem” in this litigation has been both parties and the dynamic between them.
Things might have been handled differently by both parents and for that matter by various third parties who became involved with this family at various points in time (such as the advice given to Ms Stilwell, when X was months of age, that she should not permit X to spend time with Mr Rigg other than in her presence or, following the disclosures in June 2014, the various others who were engaged with X and who, through flawed methodology and investigative methods, have inflamed Ms Stilwell’s anxieties and contributed substantially to this dispute).
I am not concerned that any other factor relating to X, her gender, maturity, lifestyle or background need be considered.
Aboriginality
Aboriginality is not a relevant consideration in this case as neither parent nor X identifies as Aboriginal.
The attitude towards the responsibilities of parenthood demonstrated by each parent
I do not propose to re-canvas or repeat that discussed above.
Ms Stilwell and Mr Rigg each have their flaws. Those flaws are, perhaps, magnified by the vastly different parenting styles that each adopts, the vastly different and diametrically opposed personality that each exhibits and by the reality that these parents must continue to engage with each other as they have brought a child into this world.
I wish to focus upon the positives. X has two parents who love and care for her deeply. As Dr B had opined they are both “… very attentive to X and clearly love her”. There is no controversy that they both meet X’s physical and intellectual needs.
Whilst each of these parents doubt it of the other (and whilst I have made some criticisms in the above discussion) each of these parents meet, albeit in very different ways, X’s emotional needs.
Ms Stilwell and Mr Rigg both have a great deal to offer X. What they have to offer X is made more difficult as a consequence of the different parenting styles and personalities of each and the difficulties this creates for them in acknowledging and understanding the benefit to X.
There is no one way to parent a child. There is no “perfect” parent. The language of social science often uses the somewhat pejorative term “good enough parenting”. In reality all any parent can ever hope to be is “good enough”. To that extent Ms Stilwell and Mr Rigg are both “good enough”. Ms Stilwell and Mr Rigg are both “good enough” as individual parents. They need to become “good enough” as a team, in combination with each other.
I do not expect either of these parents or any parent who comes before the Court to be particularly moved by any comment I make about them. However, I would hope that each might pay some attention to the views and findings expressed within these reasons for no other purpose than to take stock and to address the future with positivity.
To Ms Stilwell, I say clearly that she should not be concerned, based upon the evidence that I have considered over some 12 days, that X has been abused by her father or is at risk of being abused by him in the future.
To Mr Rigg, I say clearly that he should reflect upon his attitudes towards Ms Stilwell, a woman whom he professes he never loved and never engaged in a relationship with but purely found some comfort in as a sexual partner, and accept her as a good and loving parent to X and provide support and assistance to her, financially and otherwise, and endeavour to engage her if not as a friend and ally then at least as a respected co-parent.
I am not concerned that the attitude of either parent would obviate against them having an ongoing role in X’s life, an ongoing relationship with X and an ongoing input into decisions for X, albeit jointly and severally rather than equal and shared.
Family violence
Extraordinarily, neither parent alleges that the other has perpetrated family violence against them.
Mr Rigg had alleged that Ms Stilwell had perpetrated family violence, presumably towards X, through the manufacture of allegations and the “groundless” interference in X’s relationship with her father. I have not accepted those allegations.
It is an unfortunate reality that the vast majority of matters before this Court, approaching 80% of all four out of five cases, involve allegations of family violence. This case falls within that rare category of cases entirely absent such realities. That is a further positive that these parents should build upon.
Avoidance of future proceedings
Mr Rigg submits that future proceedings can best be avoided (perhaps only avoided) by X passing to live predominantly with him. This submission is put on the basis that Mr Rigg contends that Ms Stilwell will “inevitably” raise further “groundless” allegations against him. I do not accept that submission
It is possible that future allegations might arise. However, I have not been satisfied that the allegations that Ms Stilwell has raised have been “groundless”. The allegations have not found favour with me as indicating that X has been or is at risk of being sexually abused. In fairness to Ms Stilwell she has not agitated a case to suggest that there is an unacceptable risk of future abuse.
Ms Stilwell has related statements that have been made to her by X. Whether there has been any impact upon the repetition of those statements by X arising from Ms Stilwell’s anxiety or any other fact or circumstance cannot be clearly determined but, on balance, I am not satisfied that it is so. It is more probable that the interventions which followed the initial disclosure kept matters alive, for a short time, in X’s mind.
What has not been possible and what has not been challenged in the evidence is the reality that X’s statements to Ms Stilwell on 18 June 2014 were made without prompting, suggestion or solicitation. That reality alone would cause me to reject the submission that Ms Stilwell has either manufactured allegations or has raised “groundless” allegations.
I am conscious that in Mr Rigg’s mind future allegations are inevitable unless Ms Stilwell is positively convinced that he has not, would not and would never perpetrate abuse upon X. I am not satisfied that Ms Stilwell is so positively convinced. However, I do not accept Mr Rigg’s submission that unless such a positive rejection, a removal or excision from Ms Stilwell’s mind of such a possibility occurs, that future allegations are inevitable.
The support and assistance that Ms Stilwell is receiving is not intended to re-educate her and form in her mind a positive acceptance that nothing has ever occurred between Mr Rigg and X. The Court certainly accepts that nothing has happened of an untoward nature.
The therapeutic engagement of Ms Stilwell with Ms E is intended to ensure that Ms Stilwell is able to manage either her uncertainty or her conviction that something may have occurred in the past and so as to ensure that she can remain the best parent she can be to X through managing her own generalised and perhaps more specific anxieties. I am satisfied that this therapeutic engagement is working and working well.
As is submitted by the Independent Children’s Lawyer the “optimal outcome” in this case is for Ms Stilwell to receive therapeutic support that she needs so that X can then continue to reside predominantly with Ms Stilwell and spend substantial and significant time with Mr Rigg. I accept that submission.
I am satisfied that Ms Stilwell is receiving the therapeutic support she needs and that she will continue (irrespective of the Order that I propose to make that she do so) to engage fully, frankly and candidly with Ms E and will continue to receive the benefit that she has received to date. Accordingly, I propose to accede substantially to the proposals of the Independent Children’s Lawyer and as supported by Ms Stilwell.
I do propose, as had been raised with the parties and the Independent Children’s Lawyer, to slightly expand the arrangement that the Independent Children’s Lawyer proposes and such that the alternate weekend time that X will spend with Mr Rigg during school terms will commence on a Thursday rather than Friday.
By X spending time with her father each Thursday evening there will be greater consistency and symmetry to the arrangements for X’s care. It will also, by reference to section 65DAA(3) of the Act allow a more fulsome provision of “substantial and significant time” and time permitting X the benefit of her father being engaged in her daily routine and particularly in her education.
The additional night per fortnight will increase X’s exposure to and benefit from the stable and structured and authoritative parenting of Mr Rigg. It will also allow and permit Mr Rigg to engage with X within her school environment, being responsible for her collection from school each Thursday and each alternate Friday and her delivery to school each Friday. At these times Mr Rigg will, hopefully, be able to speak with X’s teacher, meet X’s friends and peers and the parents and carers of those children. It will also give Mr Rigg some opportunity to engage in the school community and assist X with homework and projects.
Overall, I am satisfied that the time arrangements I propose to Order will assist X in developing a more fulsome, complete and rounded relationship with her father whereby he practices his responsibility as a parent and X has the benefit of that practice.
Such an arrangement will also provide greater symmetry to X’s time arrangements. This is not intended, as Ralph Waldo Emerson opined, an incidence of:
A foolish consistency is the hobgoblin of little minds”. It is intended to ensure structure and specificity so that X knows (and her parents and others know) that Thursday is the day that Mr Rigg collects X from school and Friday and alternate Mondays the days Mr Rigg delivers X to school. To my mind that consistency is better than different arrangements applying in each week of school terms.
Accordingly, and for the above reasons I make Orders as follows (see Orders).
I certify that the preceding five hundred and eighty-four (584) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 26 August 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Remedies
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Appeal
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Costs
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