Conlan and Tomlinson (No 2) - [2018] FamCA 889

FAMILY COURT OF AUSTRALIA

CONLAN & TOMLINSON (NO. 2)

[2018] FamCA 889

FAMILY LAW – CHILDREN – Communication – where the parties’ communication skills were appalling and the order for equal shared parental responsibility made by the trial judge in 2017 was inoperative – where the Court ordered the parties to attend upon a social scientist in their local area for the purposes of endeavouring to sort out their problems – Education – where the mother had removed the seven-year-old child from school and not gave an explanation – consideration as to whether or not the child should return to school or be “home-schooled” for the remaining six weeks of 2018 – order made that it might be better for the child to remain in the home-schooling environment until the end of the year– International travel – where the trial judge had made an order in 2017 that the mother could travel internationally with the child – where the mother had given mixed messages to the father about what she intended to do notwithstanding the limitations in the final orders as to travel – where the Court is satisfied that the mother understood the risks she was taking if she failed to comply – permission to travel internationally granted.

FAMILY LAW – ENFORCEMENT – where a costs order was made against the mother – where no payment was made and the father issued enforcement proceedings – where the mother paid the debt and interest prior to the hearing but after the issue of proceedings – where the father sought costs thrown away – order made.

Family Law Act 1975 (Cth)
Federal Circuit Court Rules 2001 (Cth)

Conlan & Tomlinson [2017] FamCA 895
Conlan & Tomlinson [2018] FamCA 832

Gin & Hing [2010] FamCA 617 approved in Lorde & Chu [2015] FamCAFC 3
Line & Line (1997) FLC 92-729
Neil v Nott [1994] HCA 23; 68 ALJR 509; 121 ALR 148

APPLICANT:

Mr Conlan

RESPONDENT:

Ms Tomlinson

FILE NUMBER:

AYC

2013

DATE DELIVERED:

2 November 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

1 November 2018

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

In Person

Orders

IT IS ORDERED THAT

By 4:00 pm on 8 November 2018, the Respondent pay to the Applicant through his solicitors, the sum of $528.50 toward his costs.
The Respondent pay to the Applicant through his solicitors, a further $100 to satisfy the balance of the costs arising from the Orders made on 17 November 2017, unless she establishes that by 4:00 pm on 8 November 2018 that the payment was made to the Applicant’s solicitors trust account in April 2018.
Paragraphs 5 & 6 of the Orders of this Court made on 10

October 2018 be discharged.
The child X born … 2010 (“the Child”) be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED that the Australian Federal Police remove the name of the said Child from the Airport Watch List in force…

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 Conlan and Tomlinson (No 2)

Details

AGLC: Conlan and Tomlinson (No 2) [2018] FamCA 889
Case: [2018] FamCA 889
Decision Date: 2 November 2018

CaseChat Overview and Summary

This matter concerned an application before Cronin J in the Family Court of Australia, brought by the Applicant father against the Respondent mother. The dispute involved issues of communication between the parents, the education of their seven-year-old child, and international travel arrangements for the child. Enforcement proceedings for a prior costs order against the mother were also before the court.

The court was required to determine several key issues. Firstly, it needed to address the breakdown in communication between the parties, which had rendered previous orders for equal shared parental responsibility inoperative. Secondly, the court had to consider the mother's removal of the child from school and decide whether the child should return to mainstream schooling or continue with home-schooling for the remainder of the year. Thirdly, the court was asked to rule on the mother's request for permission to travel internationally with the child, despite prior orders and mixed messages regarding her intentions. Finally, the court had to consider the father's application for costs thrown away in relation to the enforcement of a previous costs order against the mother.

Cronin J found that the parties' communication skills were "appalling" and that the previous order for equal shared parental responsibility was inoperative. To address this, the court ordered both parents to attend upon a psychologist to work on their communication, alleviate the child's anxiety, and arrange for the child's return to mainstream schooling in 2019. Regarding the child's education for the remainder of 2018, the court considered it might be better for the child to remain in a home-schooling environment. The court also granted the mother permission to travel internationally with the child, being satisfied that she understood the risks of non-compliance with limitations in prior orders. The court also made orders regarding the payment of costs, including costs thrown away due to the enforcement proceedings.

Orders

Orders of the court

IT IS ORDERED THAT

By 4:00 pm on 8 November 2018, the Respondent pay to the Applicant through his solicitors, the sum of $528.50 toward his costs.

The Respondent pay to the Applicant through his solicitors, a further $100 to satisfy the balance of the costs arising from the Orders made on 17 November 2017, unless she establishes that by 4:00 pm on 8 November 2018 that the payment was made to the Applicant’s solicitors trust account in April 2018.

Paragraphs 5 & 6 of the Orders of this Court made on 10

October 2018 be discharged.

The child X born … 2010 (“the Child”) be permitted to leave the Commonwealth of Australia AND IT IS DIRECTED that the Australian Federal Police remove the name of the said Child from the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.

A copy of this order be sent immediately to the AFP Operations Coordination Centre by the Melbourne Registry of the Family Court of Australia AND IT IS REQUESTED that the Australian Federal Police give force and effect to this order.

Paragraph 4 of the Orders of this Court made on 10 October 2018, relating to the suspension of the final orders made on 31 October 2017, be discharged.

Pursuant to s65Y of the Family Law Act 1975 (Cth) the Child may travel internationally subject to the conditions in Orders 7 and 10 of the Orders made by this Court on 31 October 2017.

Both the Applicant and Respondent attend upon Mr HH (psychologist) of the II Group in D Town for the purposes of:

(a) Working out a framework for their communication with one another;

(b) Alleviating the anxiety of the Child in relation to discussing issues with either parent;

Any costs associated with the attendance on Mr HH (or such other psychologist as the parties agree) shall be met equally by the parties.

10.

If the parties are unable to see Mr HH for whatever reason and cannot agree upon an alternate expert, either party have liberty to apply and such application be urgently listed before the Senior Registrar.

11.

If the parties do not reach agreement by 7 December 2018 upon a school for the Child to attend in 2019, either party have liberty to apply and such application be urgently listed before the Senior Registrar.

12.

The Child continue to have tutoring as currently organised by the Respondent until the end of the 2018 school year, save that the Respondent have permission to remove the Child from the Commonwealth of Australia for the purposes of international travel to the United Kingdom, but not before 13 December 2018.

13.

All extant applications are adjourned to Tuesday 12 February 2019 at 10:00 am before the Honourable Justice Gill (sitting in Melbourne) for determination as to whether or not further parenting proceedings require judicial intervention and/or whether the proceedings should be transferred to the Federal Circuit Court of Australia.

14.

The interim orders as sought in the Amended Initiating Application filed 26 October 2018 and the Application in a Case filed 30 July 2018 are otherwise dismissed.

15.

The reasons for judgment this day be made available to the Senior Registrar forthwith.

16.

Pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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