RIGG&STILLWELL

Case [2015] FCCA 2501


FEDERAL CIRCUIT COURT OF AUSTRALIA

RIGG & STILLWELL [2015] FCCA 2501
Catchwords:
FAMILY LAW – Parenting – future care arrangements – amendment of application and evidence – notice of amendment and orders sought – consideration of the bases for permitting or refusing an amendment to relief sought – adjournment sought to enable mother to respond to the father’s case – due process – adjournment granted.

Legislation:  

Family Law Act 1975, ss.10H, 10J, 60B, 60CA, 60CC, 60CC(2A), 65DAA(5)
Federal Court Rules 2011, r.16.51
Evidence Act 1995, ss.131, 140
Federal Circuit Court of Australia Act 1999, ss.14, 42
Federal Circuit Court Rules 2001, r.7.01
Family Law Rule 2004, r.11.10
Civil Procedure Act 2005, ss.58, 64

U & U (2002) 211 CLR 238
Cropper & Smith (1884) 26 Ch D 700
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Ketteman v Hansel Properties Ltd [1987] A.C 189
Tate & Tate (No.3) (2003) FLC 93-138
Haset Sali v SPC Ltd [1993] HCA 47
Maxwell v. Keun (1928) 1 KB 645
Aon Risk Services & Australian National University [2009] HCA 27
State Pollution Control Commission v Australian Iron & Steel Pty Limited (1992) 29 NSWLR 487
Ras Behari Lal v The King-Emperor (1933) 50 TLR 1
Smith & Western Australia [2014] HCA 3
Briginshaw v Briginshaw [1938] HCA 34
Hartnett & Hynes [2009] QSC 225

Goode & Goode (2006) FLC 93-286

Other Articles Cited:

Lyons, Alicia, “Recasting the landscape of interlocutory applications: Aon Risk Services Australia Ltd v Australian National University” [2010] SydLawRw 24; (2010) 32(3) Sydney Law Review 549

Applicant: MR RIGG
Respondent: MS STILLWELL
File Number: AYC 324 of 2011
Judgment of: Judge Harman
Hearing dates: 15, 16 July 2015
Date of Last Submission: 16 July 2015
Delivered at: Parramatta
Delivered on: 16 July 2015

REPRESENTATION

Counsel for the Applicant: Mr Longworth
Solicitors for the Applicant: Robb & Associates Solicitors
Counsel for the Respondent: Ms Dart
Solicitors for the Respondent: Nevin Lenne & Gross
Solicitors for the Independent Children’s Lawyer: Ms Wearne of Legal Aid NSW Sydney Central Family Law

ORDERS

  1. Vacate the trial dates allocated to these proceedings 15-17 July 2015.

  2. The matter is listed for hearing estimate 5 days commencing 28 September 2015 at Albury.

  3. In the event that either party should wish to file and serve any updating or amending Affidavit material that material shall be filed and served no later than close of business 11 September 2015.

  4. Pending further Order, I discharge Orders 3 and 4 of the Orders made 14 August 2014.

  5. Pending further Order, the child X born (omitted) 2011 shall spend time with her father each week from such time Wednesday as the father should collect X from pre-school until the commencement of pre-school Friday following.

  6. Each of the parties shall do all acts and things necessary to authorise the collection of X for the above periods by the father, Ms…

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Details
AGLC
Rigg and Stillwell [2015] FCCA 2501
Case
[2015] FCCA 2501
Decision Date

CaseChat Overview and Summary

This matter came before Judge Harman concerning parenting arrangements for a child, X. The specific dispute involved the father's application for orders regarding the child's time with him and related procedural matters.

The court was required to determine several issues, including the allocation of time between the child and her father, the authorisation of individuals to collect the child, and provisions for daily telephone contact between the child and each parent. Additionally, the court considered the role of the Independent Children's Lawyer, the ability of parties to issue subpoenas, and the photocopying of subpoenaed material.

Judge Harman made orders vacating existing trial dates and relisting the matter for a hearing commencing on 28 September 2015. The court varied existing orders to provide for specific periods of time the child would spend with her father each week, including collection from pre-school and return. Provisions were also made for additional time with the father during a specific weekend and for daily telephone contact between the child and each parent, with conditions to ensure privacy and availability. The court also granted leave for the Independent Children's Lawyer to provide a psychologist with a copy of a report and for parties and the Independent Children's Lawyer to issue further subpoenas. Specific terms were imposed on the photocopying of subpoenaed material, including limitations on further copying and the return of copies for destruction at the conclusion of proceedings.

Orders

Orders of the court

1.

Vacate the trial dates allocated to these proceedings 15-17 July 2015.

2.

The matter is listed for hearing estimate 5 days commencing 28 September 2015 at Albury.

3.

In the event that either party should wish to file and serve any updating or amending Affidavit material that material shall be filed and served no later than close of business 11 September 2015.

4.

Pending further Order, I discharge Orders 3 and 4 of the Orders made 14 August 2014.

5.

Pending further Order, the child X born (omitted) 2011 shall spend time with her father each week from such time Wednesday as the father should collect X from pre-school until the commencement of pre-school Friday following.

6.

Each of the parties shall do all acts and things necessary to authorise the collection of X for the above periods by the father, Ms A, Ms P or Ms C, the above persons to be authorised to collect X in the event that the father is unable to do so personally.

7.

In addition to the above time X shall spend time with her father from 3pm Friday 17 July 2015 until 4pm Saturday 18 July 2015 with the father to arrange X’s collection from the mother’s home and return to the mother’s home by one of the above people.

8.

Each parent shall be at liberty to telephone and speak with X between 6pm and 6.30pm on each day that X is not and has not been in their care and provided that:

(a) The parent wishing to speak with X shall initiate the phone call to such number as is or has been provided by the other parent;

(b) Each parent shall ensure the phone service the number for which they have provided to the other is switched on, charged, in credit and in a mobile service area between 6pm and 6.30pm each day;

(c) Each parent shall be entitled to speak with X with privacy and without interruption or distraction.

9.

The Independent Children’s Lawyer shall be at liberty to provide to any child psychologist consulted by the parents (as Dr B has recommended they should do) with a copy of the report of Dr B and each parent shall authorise any such child psychologist as the parties may consult with to speak with the Independent Children’s Lawyer should the Independent Children’s Lawyer desire to do so.

10.

Leave is granted to parties and to the Independent Children’s Lawyer to issue such further subpoena as they may consider relevant, appropriate or useful and such leave expressly authorises and allows the issue of more than five subpoenas.

11.

Leave is granted to the legal representatives for the parties and the Independent Children’s Lawyer to photocopy material produced on subpoena and pursuant to section 69ZW of the Family Law Act 1975 subject to the following terms and conditions:

(a) The material shall not be further copied;

(b) The copies made shall be returned to the Registry for secure destruction at the conclusion of the proceedings;

(c) The photocopies produced shall remain the property of the Court and in the event that the retainer of the solicitors for the parties should be terminated for any reason, the photocopied material shall be immediately returned to the Court.

12.

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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