FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kalmus & Hocking [2021] FedCFamC2F 348
File number(s): HBC 1071 of 2020 Judgment of: JUDGE TAGLIERI Date of judgment: 11 November 2021 Catchwords: FAMILY LAW – parental responsibility – where the mother sought sole parental responsibility and the father sought equal shared parental responsibility – concluded that father’s repeat derogatory remarks amount to family violence – concluded that the presumption of equal shared parental responsibility does not apply – ordered that mother have sole parental responsibility on condition that she consult with the father
FAMILY LAW – parenting – supervision of child’s time with father – where mother seeks indefinite supervision – where father seeks progression to unsupervised time – ordered that child’s time with father gradually progress to unsupervised and greater time
Legislation: Family Law Act 1975 (Cth), ss 4AB, 60B(1), 60CA, 60CC(2), 60CC(3), 61DA, 60DAA, 60DAC Cases cited: Aldridge &Keaton (2009) FLC 93-421
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode (1994) FLC92-506
Grant & Grant (1994) FLC 92-506
Marvel & Marvel [2010] FamCAFC 101
Moose & Moose [2008] FamCAFC 108
Re Andrew [1996] FamCA 43
Sedgeley & Sedgley [1995] FamCA 154
Slater & Light [2011] FamCAFC 1
Walden & Cooper [2018] FamCA 595
Division: Division 2 Family Law Number of paragraphs: 91 Date of hearing: 11 and 12 October 2021 Place: Hobart Counsel for the Applicant: Mr M Trezise Counsel for the Respondent: Mr M Foster Solicitor for the Respondent: Murdoch Clarke ORDERS
HBC 1071 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2) BETWEEN: MR KALMUS
Applicant
AND: MS HOCKING
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
(1)All previous orders concerning X born in 2016 (“the child”), are discharged.
(2)Ms Hocking(“the mother”) have sole parental responsibility for the child subject to Order 3 hereof.
(3)Notwithstanding order (2), the mother shall consult with Mr Kalmus (“the father”) in relation to decisions concerning the child’s long-term care, welfare and development and seek to reach agreement with him. Should the mother and father fail to agree and subject to any subsequent court order, the mother’s decision in relation to such issue/s will apply, and the filing of a subsequent application by the father seeking judicial determination of the issue/s shall not prevent the mother from in the first instance making a decision pursuant to this order.
(1)Commencing 17 November 2021 and until the end of April 2022 the child live with the mother, and spend time with the father as follows:
In week 1, between 3.00pm and 6.00pm Wednesdays; and
In week 2, from 10.00am Friday until 4.00pm Friday.
(2)From May 2022 until the end of August 2022 the child live with the mother, and spend time with the father as follows:
In week 1 and every alternative week thereafter, from 3.00pm Wednesday to 9.00am Thursday or the commencement of school or any pre-kinder program in which the child is enrolled; and
In week 2 and every…
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CaseChat Overview and Summary
The legal issues before the court were whether the father's conduct amounted to family violence, and if so, whether the presumption of equal shared parental responsibility applied. The court also had to decide on the appropriate level of supervision for the child's time with the father and whether there should be any restrictions on the father's contact with the child.
The court found that the father's repeated derogatory remarks about the mother constituted family violence. Consequently, the presumption of equal shared parental responsibility did not apply. The court ordered that the mother have sole parental responsibility for the child, subject to consulting with the father on decisions concerning the child's long-term care, welfare, and development. The court also ordered a gradual progression of the father's time with the child, starting with supervised visits and eventually moving to unsupervised visits. The court prohibited the father from being in the presence of any person affected by alcohol or illicit drugs while with the child and restricted both parents from speaking negatively about each other or their extended families within the child's hearing.
The court's final orders included specific guidelines for the child's time with each parent, with a gradual increase in unsupervised time for the father. The orders also mandated that both parents complete specific courses and share educational and medical information relating to the child. The orders were designed to ensure the child's safety and well-being while facilitating a healthy relationship between the child and both parents.
Orders
Orders of the court
HBC 1071 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR KALMUS
Applicant
AND:
MS HOCKING
Respondent
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
(1) All previous orders concerning X born in 2016 (“the child”), are discharged.
(2) Ms Hocking(“the mother”) have sole parental responsibility for the child subject to Order 3 hereof.
(3) Notwithstanding order (2), the mother shall consult with Mr Kalmus (“the father”) in relation to decisions concerning the child’s long-term care, welfare and development and seek to reach agreement with him. Should the mother and father fail to agree and subject to any subsequent court order, the mother’s decision in relation to such issue/s will apply, and the filing of a subsequent application by the father seeking judicial determination of the issue/s shall not prevent the mother from in the first instance making a decision pursuant to this order.
(1) Commencing 17 November 2021 and until the end of April 2022 the child live with the mother, and spend time with the father as follows:
In week 1, between 3.00pm and 6.00pm Wednesdays; and
In week 2, from 10.00am Friday until 4.00pm Friday.
(2) From May 2022 until the end of August 2022 the child live with the mother, and spend time with the father as follows:
In week 1 and every alternative week thereafter, from 3.00pm Wednesday to 9.00am Thursday or the commencement of school or any pre-kinder program in which the child is enrolled; and
In week 2 and every alternate week thereafter, from 3.00pm Friday to 5.00pm Saturday; and
(3) Commencing September 2022 the child live with the mother, and spend time with the father as follows:
In week 1 and every alternate week, between 3.00pm and 6.00pm Wednesdays; and
In week 2 and every alternate week, from 10.00am Friday to 4:00pm Sunday.
(4) That commencing February 2023, the child live with the mother and otherwise spend time with and live with the father as follows:
In week 1 and every alternate week thereafter, from 3.00pm Thursday to the commencement of school on Monday; and
In week 2 and every alternate week thereafter, from 300pm Wednesday to the commencement of school on Friday.
(5) Changeover is to occur at the conclusion and start of school and at the child’s school whenever it occurs on a school day and otherwise will occur outside the police station at Town B or Town C and is to be agreed between the parties in writing.
(6) That the child spend time with each parent on special occasions as agreed between the parties, and failing agreement as follows:
Mother’s Day: if the child is not otherwise in the mother’s care, with the mother from 5.00pm the night before Mother’s Day to 3.00pm Mother’s Day;
Father’s Day: if the child is not otherwise in the father’s care, with the father from 5.00pm the night before Father’s Day to 3.00pm on Father’s Day;
In odd numbered years for Christmas, with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the father from 3.00pm Christmas Day to 3.00pm Boxing Day NOTING THAT in 2021 changeover will be at the Location D, E Street, Town F.
In even numbered years for Christmas, with the father from 3.00pm Christmas Eve to 3.00pm Christmas Day and with the mother from 3.00pm Christmas Day to 3.00pm Boxing Day.
The child’s birthday: with the parent who does not otherwise have care of him that day from 3.00pm until 5.00pm;
Easter: with the father from the conclusion of school on Thursday until 5.00pm on Easter Saturday and with the mother from 5.00pm on Easter Saturday until 5.00pm Tuesday.
(7) That whilst the child is in the father’s care, the child is not to be in the presence of any person who is affected by alcohol such that they are over a blood alcohol concentration (BAC) level of 0.05 grams of alcohol per 100ml of blood or under the influence of illicit drugs.
(8) That neither parent denigrate or speak negatively about the other, their extended family or their partner within the child’s hearing, or allow the child to be or remain in the presence of any third party who is doing so.
(9) The parent with whom the child is not living with can communicate with the child at times to be agreed or in default of agreement on Thursday evenings between 4.00pm and 6.30pm, and the communication is to be initiated by the parent who is not with the child calling the mobile telephone of the other parent, or such other device or means as the parents may agree from time to time in writing.
(10) The mother and father must keep the other informed of their preferred mobile and email contact information and residential address.
(11) The mother and father will do all things necessary to ensure both are each named on the child’s:
school or extra-curricular enrolments and a direction is provided to the children’s school that both parents are primary contacts for the child and that each parent is to receive school notifications, including in the event a child is unwell; and
medical, health and allied health service contact and/or consent authority.
(12) The mother and father are each entitled to both attend any and all school events and extra-curricular activities and sporting events involving the child, that parents normally attend including but not limited to:
(a) Parent teacher interviews;
(b) School sporting events; and
(c) Non-school extra-curricular events.
(13) The mother and father are to each inform the other as soon as practicable of any hospitalisation, significant injury or health problem suffered by the Child and details of any treatment received or medication prescribed by the Child whilst under their respective care.
(14) The mother and father are to communicate with each other by using a communication app agreed by them and in default of agreement the Our Family Wizard app; and the cost of such app is to be shared equally by the parties with the father paying the initial annual subscription and the mother the next annual subscription and alternatively paying the annual subscription renewal thereafter.
(15) Within 6 weeks of the date of these order the father is to enrol in, and then complete the MENS program through Relationships Australia or a similar course and must provide a copy of the enrolment confirmation and evidence of completion of the course to the mother by email.
(16) Within 6 weeks of the date of these orders, the mother and father are to enrol in the Parenting Separately Course through Relationships Australia and must provide a copy of confirmation of their enrolments and evidence of completion of the course to the other party by email.
(17) The increase and progression of the father’s time with the child in accordance with orders 4 and 5 of these Orders is suspended if and until the father complies with the requirements of orders 18 and 19 of these Orders.
(18) The increase and progression of the father’s time with the child in accordance with paragraphs 3, 4 and 5 of these orders is suspended if the father is charged with a breathalyser offence or offence for driving while disqualified or unlicensed.
(19) These Orders act as an authority for the parents to request and obtain any educational or medical information, record or file relating to the child that each are lawfully entitled to obtain. Each may provide a copy of the orders to the child’s school and treating medical practitioner.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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