Fleming and Tilman - [2018] FamCA 131

FAMILY COURT OF AUSTRALIA

FLEMING & TILMAN

[2018] FamCA 131

FAMILY LAW – CHILDREN – Whether the children should spend any time or communicate with the father – Family Violence – Father convicted of criminal offences related to Family Violence – Family Violence witnessed by one of the children – Use of illicit drugs – Father assisted by a “McKenzie friend” – Where the father had been spending supervised time with two of the three children – Injunctions restraining the father from contacting the children or mother – Utility of orders.

Family Law Act 1975 (Cth)

MRR v GR (2010) 240 CLR 461
Rice and Asplund (1979) FLC 90-725

APPLICANT:

Ms Fleming

RESPONDENT:

Mr Tilman

INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

FILE NUMBER:

SYC

5946

2015

DATE DELIVERED:

6 March 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Stevenson J

HEARING DATE:

12-15 February 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Barnett

SOLICITOR FOR THE APPLICANT:

McDonnell Schroder

THE RESPONDENT:

Mr Tilman for and on his own behalf

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Breeze

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mark Whelan Lawyer

Orders

All existing parenting orders in relation to the children:
●        B born on … 2005
●        C born on … 2007
●        D born on … 2010
(“the children”) are discharged.
The mother has sole parental responsibility for the children.
The children live with the mother.
The children spend no time with the father.
The father and the children communicate with each other as follows:
5.1the father may send cards, letters and gifts to the children on their respective birthdays and at Christmas in each year
5.2within seven (7) days of receipt of such cards, letters and gifts the mother request that the children’s school counsellor read such communications and authorise their reading to the children if the school counsellor deems their contents to be appropriate for that purpose
5.3in the event that the children’s school counsellor is unable or unwilling to offer assistance in accordance with Order 5.2, the mother nominate another person to carry out those responsibilities within seven (7) days of her becoming aware of the unavailability of the children’s school counsellor
5.4within 28 days of the date of these Orders, the mother nominate to the father a post office box address to which he may send letters, cards and gifts to the children in accordance with Order 5.1 and the mother retain that post office box until the child D attains the age of 18 years
5.5the mother check the contents of the post office box not less than 72 hours before and 72 hours after the events prescribed by Order 5.1
5.6the father is restrained from including any material concerning the mother and/or these proceedings in the material prescribed by Order 5.1.
Pursuant to section 68B of the Family Law Act 1975 the father is restrained from:
6.1 approaching any of the children
6.2communicating with the children otherwise than as prescribed by these Orders
6.3approaching the mother

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 Fleming and Tilman

Details

AGLC: Fleming and Tilman [2018] FamCA 131
Case: [2018] FamCA 131
Decision Date: 6 March 2018

CaseChat Overview and Summary

In the matter of Fleming and Tilman, Stevenson J of the Family Court of Australia made orders concerning the parenting of three children, B, C, and D. The dispute involved the mother and father of the children, with the court ultimately determining the future living arrangements and contact arrangements for the children.

The court was required to determine the primary issue of which parent should have parental responsibility for the children and where the children should live. Further, the court had to consider the nature and extent of any contact, if any, the father should have with the children, and whether any restraining orders were necessary to protect the children and the mother. The court also considered the practical mechanisms for communication and the provision of information regarding the children's well-being.

Stevenson J ordered that all existing parenting orders be discharged. The mother was granted sole parental responsibility, and the children were ordered to live with her, with no time spent with the father. Communication between the father and children was significantly restricted, requiring the mother to facilitate the reading of cards, letters, and gifts by a school counsellor or a nominated alternative, and to provide a post office box for such correspondence. The father was restrained from including inappropriate material in his communications. The father was also restrained from approaching the children, the mother, or their residence and school, and from communicating with them otherwise than as prescribed. The mother was ordered to inform the father of any serious illness or injury to the children and to provide health professional details, authorising the release of information. The court also made detailed orders regarding the explanation of the orders to the children, psychological support, and the provision of copies of the orders to relevant parties. Finally, the mother was permitted to apply for passports and travel internationally with the children without the father's consent.

Orders

Orders of the court

All existing parenting orders in relation to the children:

● B born on … 2005

● C born on … 2007

● D born on … 2010

(“the children”) are discharged.

The mother has sole parental responsibility for the children.

The children live with the mother.

The children spend no time with the father.

The father and the children communicate with each other as follows:

5.1 the father may send cards, letters and gifts to the children on their respective birthdays and at Christmas in each year

5.2 within seven (7) days of receipt of such cards, letters and gifts the mother request that the children’s school counsellor read such communications and authorise their reading to the children if the school counsellor deems their contents to be appropriate for that purpose

5.3 in the event that the children’s school counsellor is unable or unwilling to offer assistance in accordance with Order 5.2, the mother nominate another person to carry out those responsibilities within seven (7) days of her becoming aware of the unavailability of the children’s school counsellor

5.4 within 28 days of the date of these Orders, the mother nominate to the father a post office box address to which he may send letters, cards and gifts to the children in accordance with Order 5.1 and the mother retain that post office box until the child D attains the age of 18 years

5.5 the mother check the contents of the post office box not less than 72 hours before and 72 hours after the events prescribed by Order 5.1

5.6 the father is restrained from including any material concerning the mother and/or these proceedings in the material prescribed by Order 5.1.

Pursuant to section 68B of the Family Law Act 1975 the father is restrained from:

6.1 approaching any of the children

6.2 communicating with the children otherwise than as prescribed by these Orders

6.3 approaching the mother

6.4 communicating with the mother otherwise than as prescribed by these Orders

6.5 entering or remaining within 200 metres of the residence of the children

6.6 entering or remaining within 200 metres of any school attended by one or all of the children.

The mother advise the father:

7.1 as soon as is practicable of any serious illness or injury suffered by the children

7.2 of the names and contact details of the health professionals who deal with such illnesses and injuries and authorise those practitioners to provide to the father all information which he may request in relation to the child’s health.

The mother do all things necessary to cause the children to attend an appointment with the ICL for the purpose of explanation of these Orders.

9.1 The mother request each child’s school counsellor to meet with the child, after the appointment with the ICL prescribed by Order 8, with the intent of offering psychological support in relation to the implementation of these Orders.

9.2 If the children’s school counsellor(s) are unable or unwilling to offer assistance as envisaged by Order 9.1, the mother request a referral from the children’s general practitioner for a Medicare Better Mental Health Plan to a counsellor for the same purpose.

10.

The mother provide a copy of these Orders to the practitioner prescribed by Order 9 and the principal(s) of the children’s school(s).

11.

11.1 The mother is permitted to apply for and obtain passports for the children without having first obtained the consent of the father.

11.2 The mother is permitted to travel outside of the Commonwealth of Australia with all or any of the children.

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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