RIGG & STILWELL - [2014] FCCA 2453

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIGG & STILWELL

[2014] FCCA 2453

Catchwords:
FAMILY LAW – Parenting – unacceptable risk – allegations of sexual abuse – supervised time ordered on an interim basis – where the circumstances of the case warrant supervision of time to provide protection on three levels, protection of a party from further allegation, protection of the child from further abuse and protection from the child from further allegation and investigation.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA(5), 68P

Deacon & Castle [2013] FCCA 691
B & B (1993) FLC 92-357
M & M [1988] HCA 68

Applicant:

MR RIGG

Respondent:

MS STILWELL

File Number:

AYC 324 of 2011

Judgment of:

Judge Harman

Hearing date:

14 August 2014

Date of Last Submission:

14 August 2014

Delivered at:

Albury

Delivered on:

14 August 2014

REPRESENTATION

Solicitors for the Applicant:

Ms Robb of Robb & Associates Solicitors

Solicitors for the Respondent:

Ms Toner of Nevin Lenne & Gross

ORDERS

Pending further Order, the Final Parenting Orders made with respect to the child X born (omitted) 2011 shall be and are hereby suspended.
Pending further Order and pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X whilst she is in their care.
Pending further Order, X shall spend time with her father from 10am until 5pm each Sunday and from 2pm until 6pm each Thursday.
The above time spent by the father with X shall be subject to the following terms and conditions:
(a)All time that the father spends with X shall occur in the presence and supervision of one or other of Ms P and/or Ms C;
(b)The father (in company with one of the above) shall collect X from her day care centre or the mother’s home at the commencement of each period of time and return X to her day care centre or the mother’s home at the conclusion of each period of time.
Pending further Order, X shall spend time with her mother at all times save for when she is spending time with her father.
The father shall be at liberty to telephone and speak with X between 6.00pm and 6.30pm on each day he has not spent time with her and with respect to same:
(a)The father shall initiate a telephone call to such number as is provided by the mother;
(b)The mother shall ensure that the number provided is switched on, charged, in credit and in a mobile service area between 6.00pm and 6.30pm each day.
Each of the parties shall be and are hereby restrained from:
(a)Denigrating the other party to or in the presence of the child or allowing any other person to do so.
(b)Discussing with the child these proceedings or issues relating to the current proceedings in the Federal Circuit Court or the Magistrates Court and shall use their best endeavours to prevent any other family member or friend from doing so.
(c)Questioning the child about her…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading RIGG & STILWELL

Details

AGLC: RIGG & STILWELL [2014] FCCA 2453
Case: [2014] FCCA 2453
Decision Date: 14 August 2014

CaseChat Overview and Summary

This matter concerned an application before Judge Harman in the Federal Circuit Court of Australia, involving Mr Rigg and Ms Stilwell, who were parents of a child, X. The dispute centred on parenting arrangements for X, with allegations of sexual assault by the father being a significant factor.

The court was required to determine interim parenting orders, including the suspension of existing final orders, the allocation of parental responsibility, and the specific time X would spend with each parent. Further issues included the conditions under which contact would occur, restrictions on parental behaviour towards the child and each other, and the necessity of obtaining information from law enforcement agencies regarding allegations of abuse and family violence. The court also considered the appointment of an Independent Children's Lawyer.

Judge Harman made several interim orders, suspending the final parenting orders and granting each parent parental responsibility while the child was in their care. Specific supervised time with the father was ordered, along with telephone contact. Crucially, the court imposed significant restraints on both parents, prohibiting denigration of the other parent, discussion of proceedings with the child, and questioning the child about time spent with the other parent, particularly concerning allegations of sexual assault. The court also directed both the Victorian and NSW Police Services to provide relevant documents and information concerning any notifications of suspected abuse or family violence involving the parties and the child, with provisions to protect the identity of notifiers. An Independent Children's Lawyer was appointed for X.

Orders

Orders of the court

Pending further Order, the Final Parenting Orders made with respect to the child X born (omitted) 2011 shall be and are hereby suspended.

Pending further Order and pursuant to section 61C of the Family Law Act 1975 each parent shall have parental responsibility for X whilst she is in their care.

Pending further Order, X shall spend time with her father from 10am until 5pm each Sunday and from 2pm until 6pm each Thursday.

The above time spent by the father with X shall be subject to the following terms and conditions:

(a) All time that the father spends with X shall occur in the presence and supervision of one or other of Ms P and/or Ms C;

(b) The father (in company with one of the above) shall collect X from her day care centre or the mother’s home at the commencement of each period of time and return X to her day care centre or the mother’s home at the conclusion of each period of time.

Pending further Order, X shall spend time with her mother at all times save for when she is spending time with her father.

The father shall be at liberty to telephone and speak with X between 6.00pm and 6.30pm on each day he has not spent time with her and with respect to same:

(a) The father shall initiate a telephone call to such number as is provided by the mother;

(b) The mother shall ensure that the number provided is switched on, charged, in credit and in a mobile service area between 6.00pm and 6.30pm each day.

Each of the parties shall be and are hereby restrained from:

(a) Denigrating the other party to or in the presence of the child or allowing any other person to do so.

(b) Discussing with the child these proceedings or issues relating to the current proceedings in the Federal Circuit Court or the Magistrates Court and shall use their best endeavours to prevent any other family member or friend from doing so.

(c) Questioning the child about her time with the other parent including questions relating to alleged sexual assault by the father and will use their best endeavours to prevent any other family member or friend from doing so.

(d) Taking the children to see any counsellor or psychologist or any person for the purpose of interviewing the child or providing her with therapy other than as directed by the Independent Children’s Lawyer, the Police, the Department of Family and Community Services or this Court.

(e) Taking the child to any medical practice other than the (omitted) Medical Centre.

(f) Changing the child care centres at which the child attends.

Pending further Order, the parties and each of them shall be and are hereby restrained from causing X to attend upon or engage with any counsellor for the purpose of receiving counselling or support with respect to suggested abuse, inappropriate touching or other behaviour alleged of the father and including but not limited to the prohibition upon X attending further counselling appointments with the counsellor “Ms T” at (omitted) Community Health.

Pursuant to s.69ZW(1) I order and direct the Victorian Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days with all documents and information held by them about one or more of the following:

(a) Any notification to the agency of suspected abuse of or by the following:

(i) X born (omitted) 2011;

(ii) Mr Rigg born (omitted) 1982; and

(iii) Ms Stilwell born (omitted) 1982;

or any of them

(b) Any notification of suspected family violence affecting the above child or any of them;

(c) Any assessment by the agency of investigations into a notification of suspected abuse or family violence and/or the findings and outcomes of those investigations;

(d) Any reports commissioned by the agency in the course of investigating a notification;

and provided that no document need be provided which identifies directly, indirectly or by reference the identity of any notifier or witness (unless a party to the proceedings or a Police Officer)and to achieve compliance with this order and with s.69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier or witness is to be blanked out or otherwise removed or obliterated from the document/s so produced.

10.

Pursuant to section 69ZW(1) I order and direct the NSW Police (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Act Regulations) to provide to this Court within 14 days all notebook entries, COPS event records, or other written materials relating to any communication between Detective Senior Constable Mr G and the Respondent mother Ms Stilwell.

11.

Pursuant to s.68L an Independent Children’s Lawyer is appointed for the reasons and with ancillary orders as set out in the usual form of order Exhibit A hereto.

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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