Rivers & Rivers - [2023] FedCFamC2F 296

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rivers & Rivers [2023] FedCFamC2F 296

File number(s): NCC 1096 of 2017

Judgment of: JUDGE CARTY

Date of judgment: 17 March 2023

Catchwords: FAMILY LAW – PARENTING – final parenting application – consideration of risk of harm to children in the household of mother – impact of mental health on mother’s parenting capacity – children’s experiences of trauma in mother’s household – whether mother has demonstrated that she has adequately addressed her mental health issues – how identified risks of harm to children can be ameliorated – whether children’s time with mother requires supervision – if supervision is required what time will children spend with mother – whether professional supervision is required – capacity of father to support children’s relationships with mother – whether ongoing counselling for the children is benefitting each child – whether parents should be required to arrange alternative therapy for children

Legislation:
Evidence Act 1995 (Cth) s140

Family Law Act 1975 (Cth) Pt VII ss60B, 60CA, 60CC, 60CG,61DA, 65DAA, 69ZN, 102NA

Federal Circuit and Family Court of Australia ( Family Law) Rules 2021 Rule 10.26

Mental Health Act 2007 (NSW) s 22

Cases cited:
Rivers & Rivers [2020] FCCA 2052

Isles & Nelissen [2022] FedCFamC1F 97

M v M (1988) 166 CLR 69

Napier and Hepburn [2006] FAmCA 1316; (2006) FLC 93-303

N and S and the Separate Representative [1995] FamCA 139; (1996) FLC 92-655

Re F: Litigants in person guidelines (2001) FLC 93-072; [2001]FamCA 348

WK & SR [1997] FamCA 57; (1997) FLC 92-787

Division: Division 2 Family Law

Number of paragraphs: 203

Date of last submission/s: 17 November 2022

Date of hearing: 22, 23 and 31 August 2022

Place: Newcastle

The Applicant: Self-represented

Counsel for the Applicant: Mr Duane

Solicitor for the Applicant: CDG Law Newcastle Pty Ltd

Solicitor-Advocate for the Independent Children’s Lawyer:
Mr Squires

Solicitor for the Independent Children’s Lawyer Legal Aid NSW
ORDERS

NCC 1096 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS RIVERS

Applicant

AND:
MR RIVERS

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE CARTY

DATE OF ORDER:

17 March 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The father have sole parental responsibility for the children X born in 2011, Y born in 2012 and Z born in 2015 (“the children”).
3.The children live with the father.
4.Whenever a decision about a major long term issue in relation to the children or any of the children arises the father will, other than in a genuine emergency, contact the mother in writing and:
(a)Identify the issue;
(b)Set out his proposal;
(c)Invite the mother to respond with any alternate proposal within a stated and reasonable period of time; and
(d)Inform the mother promptly of the decision he has taken.

5.The children shall spend up to four (4) hours supervised time with the mother as follows;
(a)On Easter Monday;
(b)On Mother’s Day;
(c)On Boxing Day;
(d)On the mother’s birthday;
(e)On the children’s…

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 [2023] FedCFamC2F 296
Case: [2023] FedCFamC2F 296
Decision Date

CaseChat Overview and Summary

In Rivers & Rivers, the applicant mother sought final parenting orders, including that the three children spend time with her, supervised by a maternal family member for six months, and then on an unsupervised basis, including overnight. The respondent father and the Independent Children's Lawyer opposed the mother's application and submitted that the children are at risk of physical and psychological harm if they spend unsupervised time with the mother. The key issue for the court was whether the children remain at risk of harm in the mother's care, by being subjected or exposed to neglect and family violence, as a consequence of the mother's diminished parenting capacity during the periods when she is experiencing poor mental health. Determination of the key issue depended on whether the mother had demonstrated that she had accessed appropriate mental health supports, and complied with treatment prescribed or recommended for her mental health condition. The court found that the mother had not demonstrated that she had adequately addressed her mental health and, after careful consideration of the evidence, the court found that, until such time as the mother can demonstrate that she has adequately addressed her mental health condition or conditions, in particular by undertaking the treatment recommended, the children will remain at an unacceptably high risk of harm in her care, and that professional supervision of the children's time with the mother is required to ameliorate that risk. The court made orders that the father have sole parental responsibility for the children, that the children live with the father and that the children spend up to four hours supervised time with the mother on certain occasions throughout the year. The mother was required to pay the costs of the supervision. The parents were each at liberty to attend any school function, sporting activity or other extracurricular activity to which the parents are invited, subject to the mother being restrained from approaching within 10 metres of the father or his partner, Ms K, unless with the consent in writing of the father. The parents must use the "our family wizard" application or a similar co-parenting application, to communicate about any issue or matter relating to the children's health, development, education, or attendance at extra-curricular and sporting activities. The parents are permitted to supply a copy of the Family Report, these Reasons for Judgment, and a copy of the final parenting orders to the children's treating therapist. For the purpose of supporting her ongoing therapy, the mother is permitted to supply a copy of the Family Report and these Reasons for Judgment to any therapist, psychologist or psychiatrist engaged by her.

Orders