Rimmington & Holgate
[2021] FedCFamC1F 357
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rimmington & Holgate [2021] FedCFamC1F 357
File number(s): TVC 541 of 2019 Judgment of: BAUMANN J Date of judgment: 1 December 2021 Catchwords: FAMILY LAW – PARENTING – Where Final Orders made by consent – Where the orders provide for the child to spent overnight time with the father to commence gradually and in the presence of family members – Where supervision is not required on the basis of a finding of risk, but to ensure the father initially has support in his household Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 1 December 2021 Place: City C Counsel for the Applicant: Mr A Raeburn Solicitor for the Applicant: Legalsense NQ Lawyers Counsel for the Respondent: Mr M Fellows Solicitor for the Respondent: Legal Aid Queensland Counsel for the Independent Children's Lawyer: Mr W Pennell Solicitor for the Independent Children's Lawyer: Keir Steele Waldon Lawyers ORDERS
TVC 541 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RIMMINGTON
Applicant
AND: MS HOLGATE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
1 DECEMBER 2021
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1. That all previous Orders made in relation to the child, X born … 2015 (“the child”) be discharged.
Parental responsibility
2. That the mother and the father have equal shared parental responsibility for the major long term issues for the child, including but not limited to:
a. the child’s education (both current and future);
b. the child’s religious and cultural upbringing;
c. the child’s health;
d. the name of the child; and
e. changes to the child’s living arrangements which make it significantly more difficult for the child to spend time with each parent.
3. That the mother and the father are to consult with each other about decisions to be made in exercise of their equal shared parental responsibility as follows:
a. They shall inform the other parent in writing about the decision to be made;
b. They shall consult with each other on the terms that they agree;
c. They shall make a genuine effort to come to a joint decision; and
d. If they are unable to come to a joint decision they will attend family dispute resolution with an agreed service provider and failing agreement with B Family Services or D Family Services.
4. That notwithstanding Order 3 herein, the mother and father shall be responsible for the daily care, welfare and development of the child whilst she is living with them.
Living arrangements
5. That the child will live with the mother in City C.
6. That the child spend time with the father at all times as may be agreed, but failing agreement as follows:
a. For four (4) visits on a privately supervised basis every second or third week on a rotating basis, to correspond with the father’s rostered weeks off work (which may vary from time to time), each Saturday from 9.00am and concluding Sunday at 6.00pm;
b. For a further four (4) visits on a privately supervised basis every second or third week on a rotating basis, to correspond with the father’s rostered weeks off work (which may vary from time to time), each Friday from 3.00pm or after school and concluding the following Monday at 8.30am if that Monday is a school day, or 8.30am the following Tuesday if the preceding Monday is not a school day.
c. Upon the child spending supervised time with the father in accordance with Orders 6(a) and 6(b) and Order 7, thereafter on an unsupervised basis every second or third week on a rotating basis, to correspond with the father’s rostered weeks off work (which may vary from time to time), each Friday from 3.00pm or after school and concluding the following Monday at 8.30am if that Monday is a school day, or 8.30am the following Tuesday if the preceding Monday is not a school day.
7. That the child’s time with the father pursuant to Order 6(a) and 6(b) shall occur for a period of six (6) months from the date of these Orders, with a minimum of eight (8) visits to occur.
Private supervision
8. That when the child spends time with the father pursuant to Orders 6(a) and 6(b), such time be supervised by:
a. Ms E (the paternal grandmother); and/or
b. Ms H (the paternal step-grandmother); and/or
c. Ms F (the paternal aunt); and/or
d. Mr K (the paternal aunt’s husband).
9. That prior to commencing supervising the child’s time with the father, each private supervisor will provide to the Independent Children’s Lawyer a written undertaking and acknowledgement as to their understanding of and compliance with the obligations of supervision, including the need to communicate with the respondent mother on any issue arising during the time of their supervision, and not allowing any discussion by or with the father, the supervisor or other people present regarding the court proceedings or future care arrangements of the child and ensuring that, at all times, the child is within the supervisor’s sight and hearing.
10. That the first overnight referred to at Order 6(a) herein is to be spent at the home of either Ms F and Mr K in City C, or at the home of Ms H in G Town.
11. That the second and subsequent overnights referred to at Orders 6(a), 6(b) and 6(c) herein are to be spent at the home of father at his address in Location J on the proviso that a room has been partitioned for the child in the present living quarters of Ms E. It is noted that the parents acknowledge that a shortage of building supplies and inclement weather have delayed construction of the future living quarters on the Location J acreage.
Changeover
12. That changeover shall take place as follows:
a. At the child’s school if it is a school day; or
b. Inside McDonald’s at Suburb L if it is not a school day.
School holidays
13. That as and from the term three (3) school holiday period in 2022, the child shall spend time with each parent as follows:
a. For the one (1) half of the term one (1) and term three (3) school holidays (noting it is the intention of the parents to alternate the September school holidays so the child alternates her birthday with each parent) as follows:
i.In even numbered years with the father the first half and with the mother for the second half; and
ii.In odd numbered years with the mother for the first half and with the father for the second half.
b. For the term four (4) school holiday period as follows:
i.With the mother for the first two (2) weeks of the holiday period;
ii.With the father for the following two (2) weeks of the holiday period;
iii.With the mother for the following two (2) weeks of the holiday period; and
iv.with changeover to take place each Friday at 3.00pm.
14. That the school holiday periods be defined as follows:
a. The school holiday period as defined by the school as which the child attends;
b. Including all public holidays and pupil free days scheduled by the school from time to time;
c. Commencing on the last day that the child is required to attend at school for the purposes of the current school terms and concluding at 3.00pm on the Friday immediately prior to the day on which the child is required to attend at school for the purpose of the following school term; and
d. Save and except for the term four (4) holiday period, the midpoint of the school holiday period is to be 3.00pm on the date that is calculated to be the halfway point of the total number of days of the school holiday period, and if uneven, then changeover is to occur at 12 midday on the additional day.
with the living arrangements in Orders 5 and 6 suspended during such school holiday periods and to recommence with the child spending time with the parent that they spent time with during the first half of the school holiday period (or they had not spent time with over the school holiday period).
Special occasions
15. That in the event that the child is not able to spend time with either parent over any of the following special occasions then the parent who has the care of the child on the day is to facilitate the child participating in a video call with the other parent on the occasions provided for in Order 16.
16. That on the following special occasions the child shall spend time with the parent they are not ordinarily spending time in accordance with these Orders as follows unless otherwise agreed between the parents in writing:
a. With the father from 9.00am on the Saturday of the Father’s Day weekend until 5:00pm on the Sunday of the Father’s Day weekend; and
b. With the mother from 9.00am on the Saturday of the Mother’s Day weekend until 5:00pm on the Sunday of the Mother’s Day weekend.
17. That it is noted the mother is religious and does not celebrate Christmas, Easter or birthdays, the parents have agreed to orders providing for the child to spend time with the father on birthdays each year, as well as Christmas and Easter, as follows:
a. With the father on the child’s birthday for not less than five (5) hours on a non-school day or three (3) hours on a school day at times to be agreed between the parents and failing agreement from 12.00pm to 5.00pm (five (5) hours) on a non-school day or 3.00pm to 6.00pm on a school day;
b. With the father or the paternal family on his birthday at times agreed between the parents and failing agreement from 9.00am to 5.00pm on a non-school day or 3.00pm to 6.00pm on a school day;
c. With the father each Easter from 9.00am Good Friday until 6.00pm Easter Monday; and
d. With the father each Christmas from 9.00am Christmas Eve until 6.00pm Boxing Day.
Communication
18. That unless otherwise agreed between the parents in writing, the father be permitted to communicate with the child at all reasonable times as agreed, but failing agreement each Monday between 7.30pm and 8.00pm by way of video call whilst the child is in the care of the mother.
19. That unless otherwise agreed between the parent in writing, the mother be permitted to communicate with the child at all reasonable times as agreed, but failing agreement each Saturday at a time of the father’s choosing or between 7.30pm and 7.40pm by way of video call whilst the child is in the care of the father.
20. That both parents facilitate the child contacting the other parent at any reasonable time by video call telephone or by other electronic communication should the child express a desire to contact the other parent.
21. That the mother shall be at liberty to provide the child with a phone to enable video calls when she is in the care of the father noting that the phone shall have age-appropriate child safety features installed.
22. That for the purposes of communication between the child and the parents in accordance with these Orders, then both parents shall:
a. ensure the child is available to receive the video or telephone call and that such call is taken in a quiet environment;
b. not rush the child when she is speaking to the other parent or place pressure upon her to terminate the call early;
c. arrange for the child to telephone the other parent as soon as possible thereafter if for any unforeseen circumstance the child misses the video or telephone call from the other parent; and
d. ensure the child has privacy during the conversations.
23. That both parents shall assist the child in sending photographs to the other parent if the child expresses a desire to do so, or to receive photographs sent by the other parent.
24. That the parents will maintain an account with and communicate in respect to day to day parenting matters by way of the Talking Parents website or App and respond within twenty four (24) hours of receiving a message, except in the case of an emergency or urgency and in those instances the parents will communicate by telephone.
25. That in the event the father is not able to spend time with the child in accordance with these Orders he will provide the mother with at least fourteen (14) days’ notice and communicate with the mother regarding make-up time.
Travel
26. That each parent be at liberty to holiday with the child within Australia but outside of the City C region in which they are ordinarily spending time in during their time with the child pursuant to these Orders.
27. That if the parent spending time with the child proposes to take the child outside of the City C region in which they are ordinarily spending time with the child pursuant to these Orders in excess of three (3) nights, they shall provide the other parent with the following information at least seven (7) days prior to travel:
a. Proposed holiday destination or destinations;
b. Travel arrangements and accommodation details for the child;
c. Telephone contact number for the child whilst the child is absent from the City C region; and
d. A travel itinerary including times and dates of travel and full paid return flight or travel details if applicable.
28. That the travelling parent is to contact the other parent within twenty four (24) hours upon return to the City C region to inform the other parent of a safe return in the event that the travel away from the City C region includes camping arrangements.
Obligations of parents
Medical
29. That each parent provide to the other parent the details of any medical appointments for the child (other than general minor ailments such as colds or other ailments not requiring further medical intervention) as soon as practicable and within twenty four (24) hours of making the appointment.
30. That both parents shall administer all medication prescribed or recommended to the child by a qualified medical practitioner.
31. That both parents shall consult with one another and abide by health recommendations made in relation to the child by a qualified medical practitioner.
32. That in the event the child is injured or there is any medical or health matter concerning the child, the parent having the care of the child at that time must notify the other parent with respect to such notice as follows:
a. Should the injury, medical or health matter include the child being taken to hospital or receiving urgent medical treatment, the parent who has the care of the child is to notify the other parent immediately; and
b. Should the injury, medical or health matter not involve the child being taken to any hospital or receiving urgent medical treatment, then the parent who has the care of the child is to notify the other parent within twenty four (24) hours of becoming aware of the matter.
33. That the parents notify each other as soon as practicable in the event that the parent with whom the child is spending time with in accordance with these Orders suffers an accident or illness whilst the child is in their care which inhibits their ability to properly care for the child.
Restraints and injunctions
34. That both the mother and father be restrained and an injunction issue restraining them from:
a. denigrating the other parent, their partner or their family, to or in the presence of hearing of the child and are to ensure that no one else denigrates the other parent, their partner or their family to or in the presence of hearing of the child;
b. discussing the parenting arrangements with or in front of the child and will ensure that the child is not unnecessarily exposed to parenting issues;
c. questioning the child about the personal life of the other parent;
d. publishing any comments about the other parent on the internet/social media any other electronic platform or communication device;
e. publishing any comments about the child relating to parenting matters contained within these Orders on the internet/social media any other electronic platform or communication device;
f. being under the influence of illicit drugs in the presence of the child and/or during the time the child is in their care, and the mother and father shall remove the child from the presence of anyone else under the influence of illicit drugs;
g. consuming alcohol in excess of the legal limit in Queensland during the time the child is in their care, and the mother and father shall remove the child from the presence of anyone else consuming alcohol to excess;
h. changing the child’s name and noting that her name is to remain “X”; and
i. allowing the child to attend religious meetings or events.
School
35. That notwithstanding Order 2, the parents shall consult and attempt to reach an agreement with respect to the high school that the child is to attend but in the absence of agreement, the mother will provide a list of three (3) high schools in City C at least two (2) months prior to enrolment, and the father will select one (1) of those high schools within one (1) month of receiving the list from the mother.
36. That if the father fails to select a high school in accordance with Order 35, the mother shall enrol the child into one (1) of the list of three (3) high schools referred to at Order 35.
37. That each parent provide the administrative personnel of the child’s school from time to time with any authority necessary to ensure that all school reports, any other reports on school progress and behavioural issues or any other notices regarding the child or function that the child may be involved in such as parent-teacher nights are forwarded to the other parent at their own cost.
38. That each parent is to provide the other with reasonable notice of any social or sporting event or other activity in which the child is involved so that the other parent may attend.
39. That each parent be at liberty to visit the child at any time at her school (subject to the school’s regulations) with the intent that both parents may take an active role in the child’s ongoing education.
40. That this Order shall be authority to medical, health, sporting and educational providers of the child to release information about and discuss the child’s progress and/or health and other needs with each parent and each parent provide such further written Authority as may be required from time to time and inform the other of the names and addresses of such medical, health sporting or educational service providers.
41. That each parent be solely responsible and liable for any outside hours school care arrangements required to be utilised by them during their respective time with the child. This includes any before school, after school and/or vacation care arrangements.
Miscellaneous
42. That the parents keep each other informed as to their residential address, mobile telephone number and email address and is to advise the other parent of any change to those details within twenty four (24) hours of such change occurring except in the case of a change to residential address which is to be communicated at least seven (7) days prior to the change occurring.
43. That the child shall attend extra-curricular activities as agreed between the parents in writing provided however in the absence of agreement that each parent shall be entitled to enrol the child in one (1) extra-curricular activity at their expense, provided however, that the cost of any agreed extra-curricular activity shall be shared equally by the parents.
44. That each parent be responsible for taking the child to any agreed extra-curricular activity, birthday party or other function that the child may be participating in or invited to whilst the child is in their respective care.
45. That the mother and the father shall not relocate with the child from City C (being more than sixty (60) kilometres from the City C CBD) without the written consent from the other parent or by order of the Court.
Procedural
46. That in the event a dispute arises in relation to an aspect of these Orders, the parents will attempt to resolve the dispute by mediation with a registered family law dispute resolution provider.
47. That such alternative or additional arrangement as the parents may agree to in writing from time to time.
THE COURT ORDERS ON A FINAL BASIS:
48. That the Independent children’s Lawyer be discharged.
IT IS NOTED:
A.That pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the document attached to these Orders titled “Parenting orders – obligations, consequences and who can help”.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rimmington & Holgate has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BAUMANN J:
The conflict relating to a little girl named X, between the Applicant father, Mr Rimmington, and the Respondent mother, Ms Holgate, commenced with an Application brought by the father in April 2019 in what was then called the Federal Circuit Court of Australia. At the time of the child’s birth in 2015 and thereafter until what appears to be an acknowledged final separation in July 2018, all the evidence suggests a fairly “on and off” relationship between two young parents – the father turning 29 within the next week or so and the mother now being 25 years of age. So much can be accepted from the mere fact that the mother gave birth to a child, Y in 2017, of which Mr Rimmington is not the father.
Since the date when the parties at least acknowledged their relationship was finished finally, the mother has also given birth to another child, Z, who is now four or five months of age. In many ways the history of the matter reflected inexperienced parents, perhaps to some degree in different ways ill-prepared for the obligations of parenting and certainly unable to understand the obligations of any co-parenting arrangement. The parents have been the subject of no less than three Family Reports, to which I should acknowledge the efforts of the Independent Children’s Lawyer in either procuring or assisting in the procurement of, and an Updated Family Report as recently as a week or two ago.
It seems that this matter may not have required the amount of judicial effort and expense of Legal Aid Queensland but for a substantiation of risk made by the Department in or about early 2019. The mother says – and her evidence which I have read confirms – that in or about December 2018, X who at that stage may have just turned three years of age, made what the mother would describe as some form of disclosure to the mother about alleged inappropriate touching by the father, an allegation which the father has consistently and strenuously denied ever since it has been raised.
Although I have not seen the subpoenaed material as the parents have reached an agreement, it is clear that the report writer, Dr M, has viewed the subpoenaed material and expressed on more than one occasion some misgivings about the extent of the investigation by the Department, and if it is a finding, the conclusion reached by the Department. Nonetheless, the finding made by the Department caused other investigations to be made and in particular, the Independent Children’s Lawyer, Ms Faulkner (who has worked very hard on this matter and very diligently – as she always does), procured with the assistance of the father and in support of the father, an assessment by a psychologist, Mr N, which is loosely called a “sexual risk assessment.”
As can only be done in terms of an inability to test all the evidence and make findings of fact, there is nothing from the assessment of Mr N that would have supported a finding that the father was an unacceptable risk to the child. Lest the making of these orders for supervised time initially overnight are misunderstood, let me make it clear, although the evidence has been untested, the evidence before the Court that I have read would not have founded a finding that the father was an unacceptable risk of sexual abuse of this little girl. Nonetheless, the events for the years 2019, 2020 and 2021 have had a significant effect. It has, to a large degree, restricted the capacity of this child, who was not yet three at the time of final separation, to develop a relationship with her father in the way that may normally have developed in an age-appropriate way, had the allegations that were made by the mother been dealt with differently.
In saying this, let me also make the observation that a Court could never be critical of any parent who confronted with comments made by a child – particularly a young child – immediately dismisses time without consideration of such allegations. It is not unfair to allow those to be examined by the authorities vested with the statutory responsibility to investigate such matters. As I say, this was done by the police who elected not to take any further action, and as I have already indicated, by the Department, who Mr Fellows fairly, on behalf of his client (the mother) and on the record, acknowledged some misgivings about the manner in which the conclusion was reached by the Department.
However, these matters are never as simple as merely believing the words of a child, especially a very young child whose capacity to be confused, to embellish or to misunderstand an event is, of course, reflective of their immaturity. Couple that with a young mother and poor communication between the parents, and sadly, we have come to this conclusion in this case much later than might have otherwise been the case.
The orders which I am asked to make today, I propose to make. They provide for overnight time to commence gradually and in the presence of family members. Family members have previously been present when X has been spending day-only time with the father.
Those family members include the paternal grandmother, paternal step-grandmother, the paternal aunt and the maternal aunt’s husband. I read evidence of some, if not all of these previous supervisors and there is nothing in that material which would suggest to me they had not taken their responsibilities seriously and acted diligently. I make it clear that in agreeing to the terms of these orders that the parents have with their hard-working lawyers, shaped into the Final Orders before me, and making an order for effectively and initially for supervised time, it is not the Court’s view that supervision is necessary because of any risk. In fact, in reading the orders, I turn my mind to whether the word “supervision” is in fact appropriate.
I say that because again in my experience as a judge now of over 21 years, the word “supervision” has a peculiar and particular understanding by those in the community who might see these orders as reflecting a risk that needs to be ameliorated by some other person being present. I do not propose to change the orders, however I make it clear that the basis of the family being present is to give the mother some comfort that when the child begins overnight time with the father, as these orders require, that the father has some support in his household to meet the issues that often occur with young children, particularly at night.
They always seem to get sick at night and there is a need for experienced parenting to deal with those issues. The father will gain that experience fairly quickly. I want to make that point that time is not supervised because of any finding of risk that the Court has made about the father. The only issue is less experience with dealing with a young child overnight.
I am satisfied that the orders that are offered to the Court are in X’s best interests. I note, in particular, the restraints which the parties have agreed to and I make. It seems, and that the recent disclosure and/or evidence about the mother’s decision to practise her religious faith, has enabled the parties to consider at least how certain community events, often celebrated in the wider Australian community such as Christmas, Easter and birthdays, including the child’s birthday, are to be shared.
It being said, although there is no evidence before me of this, some of these events are not celebrated by persons who follow the mother’s religion. I note Order 17, by agreement, and of course, make it. I also note that the parties agree at Order 34(i), that the child shall not attend religious meetings or events. I read the Updated Family Report of Dr M. As a general principle, in our secular society, children are entitled to understand any faith decisions parents make for themselves. Where these parties have equal shared parental responsibility by order as well as to presumption, any religious or cultural upbringing by the parents of the child is a matter that should be the subject of agreement, and unless an agreement can be reached, then no party has an unilateral right to impose upon the child their own faith systems.
If at some future point in time – and the mother is hearing my words as she is sitting in Court – the mother wishes to involve the child in her faith, then she would either require the father’s consent or an order of the Court. I do not know what stresses and pressures complying with this order the mother may face amongst those who within her chosen faith may take a different view. I do not make any particular findings against this faith or other faiths, reflecting that they are recognised in the wider Australian community; however the mother should not be under any misunderstandings. These orders do not permit her to involve X in her faith because that is not only the parents’ agreement, but it is an order of the Court.
I can accept from many years of doing work with faith issues that arise from time to time, that this could put this young mother under some pressure; however she is obliged to follow the orders of this Court, not what might be said to her to be the requirements of a higher authority. With those observations, noting that the parties have indicated that they wish to continue to improve their communication, but at least until it reaches a level of normal communication by talking; they will use an App called “Talking Parents”. One wonders why we have an app for talking parents when they should be talking, but be that as it may, that might be a good middle ground for continuing to discuss matters relating to X, until they can safely transition to actually talking in a normal manner with more confidence.
I make these final observations. Where parties are involved in litigation – as these parties now have, and I accept are caring, loving and devoted parents to X since proceedings were commenced in April 2019, they have been required at times to swear to allegations and make comments about the other parent. Many of those words hurt, and that hurt can be carried for some years. It is not easy to put these issues totally behind them. The mother may – notwithstanding any advice she has received or her consent to this order which might suggest otherwise, continue to be apprehensive about some aspects of disclosures made by the child. The father may feel he has been unfairly treated by the mother or the Court, in the matter taking so long to get to this conclusion, and he may hold some residual hurt or even anger about those issues. These feelings by parents are not unusual.
These parents must put those issues behind them so they are able to actually move forward in the best interests of this little girl, and if they can do so, I am satisfied on the evidence I have read, they both have a lot to offer this child in terms of their unique qualities, parenting styles and interests, such that this child has every opportunity to reach her potential. If the conflict which has occurred over the last two-and-a-half years does return into their life and into the life of their child, the child’s potential will be compromised.
So for the reasons I give, which I will publish in a settled form, I make the orders which the parties offer to the Court, signed by them, initialled by me and placed with the papers as representing orders in the best interests of X at this time. I also order that the Independent Children’s Lawyer be discharged.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 1 December 2021
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