FAMILY COURT OF AUSTRALIA
| MAYNE & TOMLIN AND ANOR | [2020] FamCA 898 |
| FAMILY LAW – PARENTING – equal parental responsibility ordered in favour of father and his wife but not in favour of mother – family violence – identity time for mother unless she travels to Victoria. |
| Children, Youth and Families Act 2005 (Vic) s 162 Family Law Act 1975 (Cth) ss 4, 4AB, 60CA, 60CC, 61B, 61C, 61DA, 69ZW |
Continue reading Mayne & Tomlin & Anor
Sign in free to access the full text
- AGLC
- Mayne & Tomlin & Anor [2020] FamCA 898
- Case
- [2020] FamCA 898
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether to order equal shared parental responsibility in favour of the father and his wife, and to what extent the mother should have time with the child, X, given the context of family violence. The court was also required to determine appropriate communication arrangements between the parents and the child, and to consider whether any injunctions or further applications should be made.
Wilson J discharged all previous orders and made new orders reflecting a carefully considered approach to the child's welfare. Equal shared parental responsibility was ordered in favour of the father and the second respondent, with X to live with them. The mother's time with X was significantly restricted, limited to four occasions per year during Victorian school holidays, for a maximum of six hours each, to occur in the QQ Town area. Communication with the mother was also limited to a weekly telephone call. The court also imposed injunctions restraining the parents from denigrating each other in the child's presence and from discussing court proceedings with X. Further, the mother was restrained from making further applications under Part VII of the *Family Law Act 1975* (Cth) without first obtaining leave of the court, with specific conditions attached to any such application, including the filing of an affidavit from her treating mental health practitioner.
Orders
Orders of the court
1.
All previous orders are discharged.
2.
The father and the second respondent have equal shared parental responsibility for the child X born … 2020.
3.
X live with the father and second respondent.
4.
X spend time and communicate with the mother as follows –
(a) on four occasions per year, on dates and times that coincide with the Victorian Gazetted School Holidays;
(b) X’s spend time with his mother occur as follows –
(i) in the QQ Town area;
(ii) for a period of no more than six hours at times to be agreed and failing agreement 10am to 4pm;
(iii) with changeover to occur at a venue to be nominated by the father; and
(iv) the mother to give notice of her intention to spend time with X at least one week prior to the proposed time, in writing and in advance of each occasion; and
(c) by telephone once per week on a day and time to be nominated by the father for no longer than 30 minutes.
5.
The parties communicate by email or text message in relation to the X, in a child focused manner.
6.
The mother is permitted to send X letters, cards and gifts and the second respondent inspect the letters, cards and gifts to pass these onto X should they be child focused.
7.
The parties are hereby restrained by injunction from –
(a) abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of X and from allowing any other person to do so; and
(b) discussing these proceedings, or other proceedings in which the parties are involved, or the contents of any court related documents filed in these proceedings, with or in the presence or hearing of X and from allowing any other person to do so.
8.
The father keep the mother informed of –
(a) any significant injuries or illness that X suffers whilst in their care, as soon as practicable, following such injury or illness;
(b) any instances where X needs urgent medical attention during their time with X, immediately if possible, or otherwise as soon as practicable thereafter;
(c) any procedures or operations to be undertaken prior to those procedures or operations being undertaken, except in cases of emergency (with the party in whose care X is in to inform the other party immediately);
(d) any general medical or health issues relating to X, including but not limited to particulars of any medication prescribed to X and name and contact details of the prescribing health practitioner; and
(e) his residential address, contact number and email address.
9.
The mother is at liberty to liaise with X’s treating health practitioners –
(a) at the discretion of the treating practitioner; and
(b) with the mother to ensure she engages in a courteous and respectful manner with such professionals.
10.
The mother keep the father informed of her residential address, contact number and email address.
11.
The father and second respondent provide a copy of these orders to X’s treating medical and allied health practitioners and X’s school.
12.
Pursuant to section 64B(2)(g)(ii) of the Family Law Act 1975 (Cth) the mother is restrained from making further application under Part VII of the Act in relation to X without first making an ex-parte application seeking and obtaining leave of a Judge of the Family Court of Australia and for that purpose –
(a) the mother file an application setting out the specific orders sought and an affidavit setting out the evidence and reasons for seeking those orders;
(b) the mother file an affidavit of her treating mental health practitioner confirming her engagement in mental health services;
(c) the mother file an affidavit confirming W is being treated by allied health professionals;
(d) the mother provide confirmation that she has stable accommodation for her and her other children;
(e) unless otherwise ordered such application is not to be served on the other parties or any other person; and
(f) if possible, any such application for leave is listed before the Honourable Justice Wilson.
13.
The independent children’s lawyer is discharged.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.