The judgment of Ridgely & Stiller FCCA2668 is a sobering reminder of how a Court can deal with parenting arrangements and what the consequences are of not putting a child’s best interests before the parents’ own interest.
Judge Bender of the Federal Circuit Court of Australia heard Mr Ridgely’s application for parenting orders in relation to his 8 year old daughter. Mr Ridgely wanted his daughter to live with him and spend essentially alternate weekends and holiday time with her mother. Ms Stiller wanted the opposite – that is, their daughter to live with her, and spend alternate weekends and holidays with her father which had been the arrangements for some time. Judge Bender made orders in favour of Mr Ridgely.
So the question is – why did the Court make orders that were so different to what the 8 year old had been used to for more than 6 years?
There was a history of litigation between the parents, with the proceedings first commenced by Mr Ridgely in September 2008. Orders had been made on an interim basis, with final parenting orders being made on 7 September 2009. These orders provided for the little girl to live with her mother and spend time with her father, graduating over time to alternate weekends, a mid week evening and half of school holidays. On 16 September 2012, the mother unilaterally suspended Mr Ridgely’s time with the little girl. Ms Stiller alleged that Mr Ridgely had threatened her and bruised her arm at a changeover. The suspension of time caused Mr Ridgely to file a further contravention application and then a further application seeking orders for the daughter to ultimately live with him. The parties were able to reach agreement and entered into parenting orders on 18 April 2013 which provided for the daughter to live with Ms Stiller but spend 5 nights each fortnight with her father, and half of the school holidays. Between September 2012 and 18 April 2013, the little girl had spent no time with her father. Ms Stiller then filed an application on 13 June 2013 seeking orders to reduce the father’s time with their daughter. The basis of her application was that their daughter was not coping well with the increase in time with her father pursuant to the Orders of 18 April 2013. This caused a number of events to transpire – a further family report was prepared, interim orders were made for the daughter to see her father and the family was sent to participate in family therapy. The second family report recommended that unless the Court could be satisfied that Ms Stiller would facilitate the little girl spending time with her father, that the Court should make orders for her to live with her father and only spend time with her mother. Again, during this litigation process, the little girl had not spent time with her father from 17 July 2013 until 17 April 2014.
Mr Ridgely’s position was that Ms Stiller could not, and would not, support his relationship with their daughter. Mr Ridgely gave evidence that in his view, Ms Stiller could see no benefit in their daughter having a relationship with her father. Mr Ridgely’s position was that if the little girl were to live with him, he would ensure she spent time with Ms Stiller and that he would encourage her relationship with her mother. He said that if the little girl were to remain living with Ms Stiller, there would continue to be periods of time where Ms Stiller would not facilitate his time with their daughter and that Ms Stiller could not encourage her relationship with her father.
Ms Stiller’s position was that the arrangements as they were should stay in place (that is, the little girl live with her and spend time with her father). Ms Stiller said she did understand it was important for the little girl to have a relationship with her father and that she would encourage that relationship and comply with Court orders in the future.
When explaining why she had unilaterally ceased time with the father previously, the mother gave evidence that at a changeover the father had grabber her arm so hard it bruised her and that he had threatened to kill her. Ms Stiller said this caused the little girl to become fearful of the father and refuse to spend time with him. In the course of the litigation evidence was given from a police officer who Ms Stiller had reported the event to, and it seemed that the mother had changed her version of events and that she had not at first instance reported bruising or a threat to kill. The mother then attended upon another police station, and reported the bruising and threat to kill, an inconsistent version of events. The father denied these events. When questioned as to why she agreed to the consent orders in April 2013 which saw the father spend 5 nights a fortnight with the little girl and holiday time, Ms Stiller said she was under pressure from her legal representatives, and that at no time did she believe the arrangements were in her daughter’s best interests. Ms Stiller was also asked as to why she would attend at the school on days when Mr Ridgely was to collect the little girl, and would also have her mother and sister with her (the maternal grandmother and the maternal aunt). Ms Stiller gave evidence that it was to help their daughter as she was distressed by the idea of going with Mr Ridgely. The Mother was also asked why she would not encourage the child to go with Mr Ridgely from a Contact Centre, and why she would have the little girl sit on her lap and not encourage her to go. Ms Stiller was questioned as to whether there was any reason for the little girl to be afraid of her father. The only reason the mother gave was that she was afraid that he might take her away from her mother. Ms Stiller was asked why she had cancelled a number of appointments with a therapeutic counsellor who was working with the parties to rebuild the father’s relationship with the little girl. Ms Stiller said that she had gained employment which prevented her from attending.
The therapeutic counsellor gave evidence that Ms Stiller’s complaints of the father were extremely trivial. The counsellor also undertook a number of observation exercises, which caused her to form a view that the child was receiving very powerful messages from Ms Stiller that she was uncomfortable about the child spending time with Mr Ridgely. From a psychological perspective, the counsellor made observations that the child felt disloyal to Ms Stiller and was betraying her if she was to act naturally and relaxed with her father. The counsellor gave evidence that it was in the child’s best interests to live with the father, and that she could thrive in the father’s household. The family report writer also gave evidence that the child’s fearfulness of her father did not arise from the father’s actions, but rather from information supplied by the mother. The family report writer observed the child to appear not to have permission from the mother to either have or enjoy a relationship with her father, and that the mother’s interference had worsened over time. The family report writer also gave evidence as to the impact the mother’s behaviour was having on the little girl. She reported the child as presenting as being under enormous pressure, and that she was very distressed. One comment made by the report writer was “X wants the opportunity to love both parents simultaneously and she reflects herself as being pecked to death by her parent’s incessant questioning and the requirement she conform to her mother’s wishes”. The family report writer also supported the position that the child live with the father.
Ultimately the Court found that the child had been able to maintain a positive relationship with the father, notwithstanding the periods of time when she had not seen her father. The Court also found that it was the mother’s inability to support the child’s relationship with the father that went “to the very heart of the matter“.
When determining a parenting matter, the Court looks to the framework established by the Family Law Act 1975 and case law. Generally (and there are exceptions) it is in a child’s best interests to have a meaningful relationship with both parents. Judge Bender found that in this case. The concern for Judge Bender was whether the mother could facilitate the child having this meaningful relationship with her father. The Court was also concerned that the mother was exposing the child to psychological harm. Both the counsellor and the family report writer supported this position.
The Court found that the mother had for many years actively interfered with the child’s time with her father, and that the mother continually perpetuates her very negative views of the father to the child. The Court had previously tried to minimise the child’s distress by making orders for changeover at a contact centre or school, but the mother continued to interfere with this process.
When making Orders, Judge Bender made comment that for the Court to take the somewhat drastic step to change a child’s primary carer… there must be very compelling reasons. The Court was satisfied that this was one of those cases. The Court ultimately found that the only way the little girl could have a meaningful relationship with both her parents, was to live with her father.
If you have any questions regarding your parenting arrangements, please contact one of our family lawyers. In the busy lead up to Christmas we are making sure to keep availability to meet with new clients and have 3 lawyers available – Sophie Pearson, partner; Rebecca Barron, associate and Nicole Fitzgibbon, solicitor.