Richmond & Tarido

Case [2023] FedCFamC1F 984

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Richmond & Tarido [2023] FedCFamC1F 984

File number(s): CAC 695 of 2018
Judgment of: GILL J
Date of judgment: 17 November 2023
Catchwords:  FAMILY LAW – PARENTING – Interim parenting orders – Assessment of risk – Family violence – Unacceptable risk – The principle in Rice v Asplund – Where consent terms are currently in force – Where the mother asserts that the child is at risk of being exposed to family violence perpetrated by the father against his current partner – Where there are criminal charges against the father for family violence against the mother – Where a number of incidents of family violence are alleged to have been perpetrated by the father against his partners – Where the current risk of exposure to family violence is unacceptable and warrants a modification to the time spent with the father – Sole parental responsibility
Legislation: Family Law Act 1975 (Cth) (“the Act”) ss 60B, 60CA, 60CC, 60CG, s 65DAA
Cases cited:

Bielen v Kozma (2023) 66 FamLR 59

Eaby & Speelman (2015) FLC 93-654

Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346

Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97

Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84

Salah & Salah [2016] FamCAFC 100

SS v AH [2010] FamCAFC 13
Division: Division 1 First Instance
Number of paragraphs: 55
Date of hearing: 10 November 2023
Place: Canberra
Solicitor for the Applicant: Jeanine Lloyd, Jeanine Lloyd & Associates
Counsel for the Respondent: Ms Gillies, SC
Solicitor for the Respondent: Parker Coles Curtis
Solicitor for the Independent Children's Lawyer: Ms Cruise, Legal Aid

ORDERS

CAC 695 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS TIRADO

Applicant
AND:

MR RICHMOND

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

17 NOVEMBER 2023

THE COURT ORDERS THAT:

1.Orders 2, 4, 9 and 10 of the orders made 27 October 2022 are discharged.

2.Orders 3, 5, 6, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the Orders made 27 October 2022 shall remain in effect.

Parental responsibility

3.The mother shall have sole parental responsibility for the child X, born 2015 (‘the child’), save that the mother is required to give 7 days written notice to the father and ICL prior to engaging the child with therapy.

4.The mother is restrained from changing the child’s school without obtaining written agreement from the father.

Lives with/spends time with

5.The child shall live with the mother.

6.The child shall spend time with the father from the commencement of school, or 9am if not a school day, each Wednesday, to the commencement of school, or 9am if not a school day, each Friday.

7.If the child becomes unwell at school and requires collection earlier than 3pm, the parent that is due to collect X at the conclusion of school shall collect…

Continue reading Richmond & Tarido

Sign in free to access the full text

Details
AGLC
Richmond & Tarido [2023] FedCFamC1F 984
Case
[2023] FedCFamC1F 984
Decision Date

CaseChat Overview and Summary

Ms Tarido applied to the Family Court of Australia seeking modifications to interim parenting orders previously agreed by the parties. The Court was required to determine whether the father, Mr Richmond, had engaged in family violence with partners subsequent to the termination of his relationship with Ms Tarido, and if so, whether this warranted a modification to the interim parenting orders. The Court was also required to determine if Ms Tarido was permitted to relitigate the issue of family violence under the principles in Rice v Asplund, given that some of the matters raised by her were known at the time the consent orders were made.

The Court found that there were sufficient grounds to believe that the father had engaged in family violence with partners after the end of his relationship with Ms Tarido. The Court considered the evidence, including a police report and an affidavit from one of the father’s former partners, who had been charged with assaulting the father. The Court found that the current risk of exposure to family violence was unacceptable and warranted a modification to the time the child spent with the father. The Court also found that Ms Tarido was permitted to relitigate the issue of family violence, as the principles in Rice v Asplund did not prevent her from doing so.

The Court made orders that the mother would have sole parental responsibility for the child, the child would live with the mother, and the child would spend time with the father on specified days and occasions. The Court also ordered that both parents must undertake hair follicle tests for illicit drugs.

The Court ordered that the existing consent orders be modified to reflect the new arrangements for the child’s living and spending time with the father. The Court also ordered that the mother must give seven days' written notice to the father and the Independent Children's Lawyer before engaging the child with therapy and that the mother is restrained from changing the child’s school without obtaining written agreement from the father.

Orders

Orders of the court

CAC 695 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS TIRADO

Applicant

AND:

MR RICHMOND

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

GILL J

DATE OF ORDER:

17 NOVEMBER 2023

THE COURT ORDERS THAT:

1. Orders 2, 4, 9 and 10 of the orders made 27 October 2022 are discharged.

2. Orders 3, 5, 6, 7, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the Orders made 27 October 2022 shall remain in effect.

Parental responsibility

3. The mother shall have sole parental responsibility for the child X, born 2015 (‘the child’), save that the mother is required to give 7 days written notice to the father and ICL prior to engaging the child with therapy.

4. The mother is restrained from changing the child’s school without obtaining written agreement from the father.

Lives with/spends time with

5. The child shall live with the mother.

6. The child shall spend time with the father from the commencement of school, or 9am if not a school day, each Wednesday, to the commencement of school, or 9am if not a school day, each Friday.

7. If the child becomes unwell at school and requires collection earlier than 3pm, the parent that is due to collect X at the conclusion of school shall collect the child as requested by the school. To facilitate this Order, the parent that receives the call from the school advising that the child is unwell and needs to be collected shall contact the other parent immediately to make arrangements for the child to be collected.

8. The child shall spend time with the father on special occasions as provided for in Order 11 of the Orders made 27 October 2022.

Other

9. By 17 December 2023, both parents shall undertake a hair follicle test for illicit drugs to cover the previous one month period, and provide the results of the test to the parties’ solicitors and the ICL within 7 days of receipt of such results.

10. By 17 March 2024, both parents shall undertake a hair follicle test for illicit drugs to cover the previous three month period, and provide the results of the test to the parties’ solicitors and the ICL within 7 days of receipt of such results.

NOTATIONS:

A. For the purpose of order 4, it is noted that the child is currently enrolled at and attending C School.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Further, here the issue is raised as to whether, pursuant to the principles contained in Rice v Asplund,[8] the mother should be permitted to relitigate an issue previously resolved by the current consent orders, where a portion of the matters raised by her are identified as being known to the mother at the time of the entry into the consent terms. [8] Rice v Asplund (1979) FLC 90-725; [1978] FamCA 84.THE EVIDENCE The primary focus of the evidence was on matters that have arisen since entering into the consent orders in October 2022 that the mother asserted indicated that the father had been engaging in family violence with two other partners following the ending of the relationship with the mother. The particular evidence identified by the mother is set out below. A police report dated mid-2023[9] recorded a police attendance on that day upon the father and a woman at L Apartments in City M. The police record hearing an argument on approach, the parties explaining that they were just having a verbal argument. Police noted no concerns for the parties. There was no suggestion that X was present. [9] Ex ICL 1 An affidavit of Ms J dated 9 November 2023 described that Ms J appears to be a current partner of the father, describing that a relationship commenced in April or May 2023, and that she and her son have commenced cohabitation with the father recently. While Ms J asserts that the father has not perpetrated family violence upon her, she describes that the police have charged him with an incident involving her at the N Hospitality Venue. She reproduced correspondence that she has sent to the Director of Public Prosecutions in the following terms: In regard to the matter I, as the apparent victim i have stated that I am not scared for my safety, that the assault was defiantly not a assault or something to be charged over, As me and [Mr Richmond] train every day in the gym we are both very strong and hot headed and it can be seen to others that our arguments can be over the top when they are not. The evidence may look worse than what happened, but I assure you its not how it seems, and I was not assaulted in any shape of form and was trying to calmly leave with [Mr Richmond] to go back home. When police arrived to arrest [Mr Richmond], we were content and happy and settled. Now the bail conditions are putting strain on our family as we don't know what's going on and we need to contact each other and move on.[10](As per the original)[10] Affidavit of Ms J filed 9 November 2023 [7]. The father’s material does not disclose anything about this outstanding criminal charge. Whatever the incident entailed, it appears accepted by the witness that to an outside observer an “over the top” argument was occurring that preceded the arrest. The circumstances of such were not described by either the father or Ms J. It is not suggested that X was present at the incident. Ms J asserts that X has a good relationship with her son. A police report of early 2021[11] that relates to an unidentified partner (later identified in the affidavit of Ms E to be Ms E) of the father, and a third party reporting to have received a complaint from that person that she had been injured by the father. Police then attended upon the father, who is recorded as initially telling the police that the other person was not feeling well and did not want to talk to the police, becoming angry and saying that he could not make her come to the door. When the woman came to the door she presented with a black eye. She then described to the police (in the presence of the father), in response to questions about her black eye that she had fought with her mother. [11] Ex ICL 4

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.