RIVERS & RIVERS - [2020] FCCA 2052

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIVERS & RIVERS

[2020] FCCA 2052

Catchwords:
FAMILY LAW – Interim parenting dispute in which both parents seek primary residence – whether mother’s mental health and potential abuse of prescribed medication poses a risk to the children – Interim orders made for children to remain with the father – mother to spend supervised time.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 61DA, 65DAA, 69ZL,

Pt.VII

Cases cited:

Goode & Goode [2006] FamCA 1346

Applicant:

MS RIVERS

Respondent:

MR RIVERS

File Number:

NCC 1096 of 2017

Judgment of:

Judge Costigan

Hearing date:

22 July 2020

Date of Last Submission:

22 July 2020

Delivered at:

Newcastle

Delivered on:

27 July 2020

REPRESENTATION

Counsel for the Applicant:

Ms Ticehurst

Solicitors for the Applicant:

Attitude Family Law

Counsel for the Respondent:

Mr Duane

Solicitors for the Respondent:

CDG Law Newcastle Pty Ltd

Solicitors for the Independent Children's Lawyer:

Legal Aid NSW (Ms McMullen)

ORDERS PENDING FURTHER ORDERS:

The children X born in 2011, Y born in 2012 and Z born in 2015 live with the father.
The mother shall spend time with the children at B Contact Centre supervised contact centre and to facilitate such, the parties shall:
(a)Contact B Contact Centre within seven (7) days of the date of these orders and complete all intake procedures as requested by them;
(b)Do all things reasonably necessary so as to cause the children to spend time with the mother for not less than two (2) hours each fortnight, at dates and times as advised by the contact service; and
(c)Pay equally between them the fees as determined by B Contact Centre.
The mother is at liberty to spend time with the children supervised by the C Contact Centre contact centre or D Contact Centre, in accordance with Order 2, until B Contact Centre becomes available and the parties shall pay the fees for that service equally between them.
The mother shall be at liberty to have Facetime or Skype contact with the children on one occasion per week at times agreed between the mother and father and failing agreement, 4:00pm each Wednesday for a period of half an hour.
That in the event that the mother elects to undertake dialectical behaviour therapy (“DBT”), she is at liberty to provide her treating DBT practitioner with a copy of the Child Dispute Conference Memorandum dated 3 July 2020 to her treating psychologist.
The father shall keep Z enrolled at E Day Care,
The father shall within 7 days of the date of these orders attend upon Y’s general practitioner to obtain a referral for a comprehensive paediatric assessment for Y and shall comply with all recommendations made by the general practitioner or paediatrician.
Each party is hereby restrained by injunction from denigrating the other party or a member of their household within the hearing of the children.

IT IS NOTED that publication of this judgment under the pseudonym Rivers & Rivers is approved pursuant to s.121(9)(g) of the Family…

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 RIVERS & RIVERS

Details

AGLC: RIVERS & RIVERS [2020] FCCA 2052
Case: [2020] FCCA 2052
Decision Date: 27 July 2020

CaseChat Overview and Summary

In *Rivers & Rivers*, the Family Court of Australia considered an interim parenting dispute where both the mother and father sought primary residence of the children. The central concern raised by the father was the mother's mental health and her alleged potential abuse of prescribed medication, which he contended posed a risk to the children's welfare.

The court was required to determine whether interim orders should be made to ensure the children's safety and well-being, specifically addressing the father's allegations regarding the mother's mental health and medication use. The primary legal issue was the appropriate interim parenting arrangement in circumstances where one parent's capacity to care for the children was questioned due to health concerns.

Judge Costigan reasoned that the paramount consideration in determining interim parenting orders is the best interests of the children. Applying this principle, and having regard to the evidence presented concerning the mother's mental health and medication, the court found it necessary to make interim orders that prioritised the children's safety. Consequently, the children were ordered to remain with the father, and the mother was granted supervised time with them.

Orders