Riggio & Cowper - [2023] FedCFamC2F 1

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Riggio & Cowper [2023] FedCFamC2F 1

File number(s): WOC 1334 of 2019

Judgment of: JUDGE ELDERSHAW

Date of judgment: 10 January 2023

Catchwords: FAMILY LAW – PARENTING – INTERIM ORDERS – Where the father seeks non-supervised time with the children – Where the mother seeks a continuation of supervised time between the father and the children – Where there is issue as to if the children are at risk of harm in the father’s care – Where both children present with developmental difficulties –Where there are allegations of family violence –Where the father discontinued visits with the children for over a year – Where the father’s capacity to meet the children’s emotional and psychological needs remains unclear –Where the risk posed by the father continues to warrant supervision – Where the children would be assisted by regular consistent engagement with the father – Where the children shall live with the mother – Where the children shall continue to spend supervised time with the father –Where the children shall spend time with the paternal grandparents

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 62B, 65DA

Cases cited:
Eaby & Speelman (2015) FLC 93-654; [2015] FamCAFC 104

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Marvel v Marvel (No 2) (2010) 43 Fam LR 348; [2010] FamCAFC 101

Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100

SS v AH [2010] FamCAFC 13

Division: Division 2 Family Law

Number of paragraphs: 179

Date of hearing: 12 December 2022

Place: Sydney

Counsel for the Applicant: Mr Fermanis

Solicitor for the Applicant: CA Williams Legal Pty Ltd

Counsel for the First Respondent: Ms Tabbernor

Solicitor for the First Respondent: Rafton Family Lawyers

The Second Respondent: The Second Respondent appeared in person

Counsel for the Independent Children's Lawyer: Ms Ingenito

Solicitor for the Independent Children's Lawyer: Legal Aid NSW Town C Family Law
ORDERS

WOC 1334 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR COWPER

Applicant

AND:
MS RIGGIO

First Respondent

MS COWPER

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE ELDERSHAW

DATE OF ORDER:

10 JANUARY 2023

PENDING FURTHER ORDER THE COURT ORDERS THAT:
1.In these Orders, “the children” mean X born in 2015 and Y born in 2017.
2.The interim orders made on 17 July 2020 be amended as follows:
THE COURT ORDERS THAT:
~~1.The matter be listed on 6 October 2020 at 9:30AM for mention before Judge Altobelli.~~
2.Any Application in a Case or Objection to Subpoena made returnable by the Registry from the date of these orders until the next adjourned date will not be heard on that date without the express leave of Judge B Smith.
3.[X], born [in] 2015 and [Y], born [in] 2017 (“the children”) shall live with the mother.

Children’s time with the father
4.Except as agreed between the parties in writing, the father shall spend supervised time with the children as follows:
(a)For ~~two (2)~~ three (3)

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 Riggio & Cowper

Details

AGLC: Riggio & Cowper [2023] FedCFamC2F 1
Case: [2023] FedCFamC2F 1
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Judge Eldershhaw considered the parenting arrangements for the children, X and Y. The parents, Ms Riggio and Mr Cowper, had separated in April 2019 and had been engaged in lengthy proceedings regarding the children's care. The father sought unsupervised time with the children, while the mother sought continued supervised time and alleged ongoing family violence by the father. The court considered the children's best interests, the risk of harm, and the views and relationship of the children with each parent. The court found that the risk posed by the father's past abusive and aggressive behaviour had not materially changed, and the children would be assisted by regular, consistent engagement with the father. However, the risk warranted continued supervision. The court ordered that the children would live with the mother and spend supervised time with the father, initially for three hours every alternate Saturday, and later for six hours. The children would also spend time with the paternal grandparents. The matter was transferred to Division 1 for a final hearing, estimated to require five to six days.

Orders