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)…
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- Rigg and Stilwell (No.4) [2016] FCCA 2205
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- [2016] FCCA 2205
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CaseChat Overview and Summary
The court was required to determine the specific parenting arrangements for X, including where X would live, the time X would spend with each parent, and the nature of their shared parental responsibility. The court also needed to address provisions for communication between the parents regarding X's health, education, and psychological well-being, as well as the parents' participation in a Parenting Orders Program.
Judge Harman ordered that all prior parenting orders be discharged. The court established that both parents would have parental responsibility for X, with X to live with Ms Stilwell. Specific time arrangements were detailed for X to spend with Mr Rigg during school terms and holidays, including provisions for alternate weekends, intervening weeks, and school holidays, with particular arrangements for Christmas Eve and Boxing Day. The orders also mandated that both parents ensure they are listed as parents and emergency contacts at X's school, facilitate direct communication regarding X's health and treatment decisions, and obtain consent before X attends counselling or psychological services. Furthermore, both parents were ordered to re-engage with the Parenting Orders Program.
Orders
Orders of the court
1.
That all prior parenting Orders with respect to the child, X born (omitted) 2011, shall be and are hereby discharged.
2.
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.
3.
That X shall live with her mother Ms Stilwell.
4.
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).
5.
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.
6.
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.
7.
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.
8.
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.
9.
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.
10.
Discharge the Independent Children’s Lawyer with the Court’s thanks.
11.
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.
12.
All outstanding Applications and Responses are withdrawn and dismissed and all issues are removed from the list of matters awaiting hearing.
13.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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