Kinrade and Tolmay

[2017] FamCA 384

FAMILY COURT OF AUSTRALIA

KINRADE & TOLMAY [2017] FamCA 384

FAMILY LAW – APPEAL – Withdrawn and Dismissed
FAMILY LAW – CHILDREN – Interim Consent Terms - Family violence

APPLICANT: Mr Kinrade

RESPONDENT: Ms Tolmay

FILE NUMBER: CAC 580 of 2017

DATE DELIVERED: 30 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 30 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Thomson, Sautelle White Lawyers

SOLICITOR FOR THE RESPONDENT: Mr Cullinan, Tony Cullinan Lawyers

Orders

1. That both parties have parental responsibility of the children, B born … 2010 and C, born … 2014.

2. That the children live with the respondent mother.

3. That the children spend time with the applicant father each alternate weekend and half of the school holidays.

4. Changeovers are to occur at D Hotel, E Town at 7.00pm on Friday and 7.00pm on the following Sunday.

5. That the applicant father may contact the children on their mobile phones on Monday, Wednesday and Friday’s at 5.30pm.

6. The respondent mother shall make the children available for telephone contact with the applicant father Monday, Wednesday and Friday at 5:30pm.

7. Notwithstanding order 3, the parents shall spend time with the children on Father's Day and Mother’s Day as agreed, and in the absence of an agreement as follows:

   (a)If Father’s Day falls on a weekend when the children are not already spending time with the applicant father, then the children will spend time with the applicant father from 5.00pm on the Saturday before the day until 5.00 pm on that day.

   (b)If Mother’s Day falls on a weekend when the children are not already spending time with the respondent mother, then the children will spend time with the respondent mother from 5.00 pm on the Saturday before the day until 5.00 pm on that day.

8. Notwithstanding 3, the parents shall spend time with the children on the parents’ birthdays as agreed, and in the absence of an agreement as follows:

   (a)On the applicant father’s birthday the children will spend time with the applicant father if not already spending time with him for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non school day.

   (b)On the respondent mother’s birthday the children will spend time with the respondent mother if not already spending time with her for a minimum of two hours if the birthday falls on a school day and a minimum of four hours if the birthday falls on a non school day.

9. That the father refrain from consuming illicit drugs for a period of 24 hours prior to spending time with the children.

10. That each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other party of any change thereto within seven (7) days of such change. 

11. In the event that the children suffer any significant injury or illness, the parties are to inform the other party without delay of the nature of the injury or illness and the name and address of any health professional to whom the children have been referred.

12. That both parties be permitted to liaise directly with the children’s school, pre-school, and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.

13. That each party is at liberty to attend the children’s school for the purposes of any function or activity normally attended by parents.

14. That each of the parties is restrained from:

    (a)abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and from permitting any other person to do so in the presence of the children; and

    (b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children and from permitting any other person to do so.

15. That the Family Court Appeal be withdrawn.

16. That the parties attend a Legal Aid Litigation Intervention Conference to be coordinated by the respondent mother.

IT IS NOTED THAT

1. In order to address issues raised, but contested, in respect of family violence these orders are made with the understanding of the parties that the father will exercise the time that he spends with the children by residing with his mother during the periods that the children reside with him. 

IT IS FURTHER ORDERED THAT

1. The Appeal from the Local Court at F Town is withdrawn and dismissed.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kinrade & Tolmay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 580 of 2017

Mr Kinrade

Applicant

And

Ms Tolmay

Respondent

REASONS FOR JUDGMENT

1. This matter comes before me by way of Appeal from the Local Court at F Town.  The matter had been transferred from the Local Court at F Town to the Federal Circuit Court at Canberra, however, the matter is before me in my jurisdiction to deal with the matter as an appeal.  I have been notified by the appellant that the appellant seeks to discontinue the appeal but that the applicant and respondent seek that consent terms be entered into on an interim basis pending the further resolution of the matter before the Federal Circuit Court. 

2. This is a matter in which issues of family violence arise.  The mother alleges that the father has been violent to both her and towards their child, B.  The father disputes the mother’s allegations.  The interim consent terms make provision for the children to spend time with their father on an unsupervised basis.  The particular protections that the parties say are available to deal with the untested assertions of family violence are that the father is prohibited from the consumption of illicit materials, being a matter that the mother raises as being a factor in the family violence that she alleges.  Further, although not reflected in the terms of the interim consent orders, the factual basis for the parties agreeing to the orders is that when the children live with the father the father will reside with his mother.  It is the position of the parties that this adequately deals with the issues of family violence that have been raised.  The parties have indicated to me that they have no difficulty with a notation as to that particular fact being included with the interim consent orders.  With those protections in place and with the parties consent to the arrangements, I am satisfied that that sufficiently deals with the issues of family violence that are raised.

3. As indicated those two mechanisms that are put in place in the context of contested allegations in respect of B are sufficient to manage the risk as indicated by the mother in her affidavit dated 27 March 2017. 

4. Accordingly, I make orders in terms of the interim consent orders received in the Court on 26 May 2017 and executed by the parties and the following notation is made:

   In order to address issues raised, but contested, in respect of family violence these orders are made with the understanding of the parties that the father will exercise the time that he spends with the children by residing with his mother during the periods that the children reside with him.

5. The Appeal from the Local Court at F Town is withdrawn and dismissed.

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 30 May 2017.

Associate:

Date:  30 May 2017