Richmond & Tirado (No. 2)

Case [2021] FamCA 214

FAMILY COURT OF AUSTRALIA

Richmond & Tirado (No. 2) [2021] FamCA 214

File number(s): CAC695 of 2018
Judgment of: GILL J
Date of judgment: 20 April 2021
Catchwords:

FAMILY LAW – INTERIM PROCEEDINGS – binding financial agreement – application for litigation funding order – injunctive relief – undertakings.

FAMILY LAW – CHILDREN – modification of child related orders.

Legislation: Family Law Act 1975 (Cth) – s 117
Cases cited:

In Marriage of Zschokke (1996) 133 FLR 375

Norton & Locke (2013) 50 Fam LR 517

Salvage & Fosse [2020] FamCAFC 144
Number of paragraphs: 68
Date of hearing: 18 February 2021
Place: Canberra
Counsel for the Applicant: Dr Leslie
Solicitor for the Applicant: KJB Law
Counsel for the Respondent: Ms Dart
Solicitor for the Respondent: Parker Coles Curtis
Solicitor for the Independent Children's Lawyer: Legal Aid, ACT

ORDERS

CAC695/2018
BETWEEN:

MS TIRADO

Applicant
AND:

MR RICHMOND

Respondent
INDEPENDENT CHILDREN’S LAWYER
Other

ORDER MADE BY:

GILL J

DATE OF ORDER:

20 APRIL 2021

THE COURT ORDERS THAT:

Parenting orders

1.Order 3 of the orders of Judge Tonkin of 26 October 2018 is, from 23 April 2021, discharged, and from that date the following order is operative:

2.X shall live with each of his parents in the following manner:

(a)With the mother from Friday at the commencement of school (or 9 am if not a school day) until the commencement of school (or 9 am if not a school day) the following Wednesday.  

(b)With the father from Wednesday at the commencement of school (or 9 am if not a school day) until the commencement of school (or 9 am if not a school day) the following Monday.

(c)With the mother from Monday at the commencement of school (or 9 am if not a school day) until the commencement of school (or 9 am if not a school day) the following Wednesday. 

(d)With the father from Wednesday at the commencement of school (or 9 am if not a school day) until the commencement of school (or 9 am if not a school day) the following Friday.

Restraints

3.Order 3 sought in the mother’s application in a case filed 16 November 2020 seeking restraints be imposed upon the father is, noting the undertaking given by the father on 17 February 2021, dismissed.

Litigation funding orders

4.Order 4 sought in the mother’s application in a case filed 16 November 2020 seeking litigation funding is dismissed.

Payment of loans

5.Orders 5 and 6 sought in the mother’s application in a case filed 16 November 2020 seeking restraints be imposed upon the father is, noting the undertaking given by the father on 17 February 2021, dismissed.

Disclosure

6.Orders 14, 15 and 16 of the orders sought by the mother in relation to disclosure are dismissed.

Valuation

7.Order 17 of the orders sought by the mother in relation to valuation is dismissed.

Relisting

8.The parties are at liberty to seek the relisting of this matter on seven days’ notice in writing.

Note:   The form of the order is…

Continue reading Richmond & Tirado (No. 2)

Sign in free to access the full text

Details
AGLC
Richmond & Tirado (No. 2) [2021] FamCA 214
Case
[2021] FamCA 214
Decision Date

CaseChat Overview and Summary

In the matter of *Richmond & Tirado (No. 2)*, Gill J of the Family Court of Australia considered applications by the mother, Ms. Tirado, against the father, Mr. Richmond, concerning parenting arrangements for their child, X, and related financial and procedural matters. The dispute involved the modification of existing parenting orders, the enforceability of a binding financial agreement, and applications for litigation funding and injunctive relief.

The court was required to determine several legal issues. Firstly, whether the existing parenting orders made by Judge Tonkin on 26 October 2018 should be modified, particularly in light of X commencing school and the need for weekend time with both parents. Secondly, the court had to consider the mother's application for litigation funding to pursue a property application, which the father sought to prevent based on a binding financial agreement. Thirdly, the court addressed applications for restraints against the father and for disclosure and valuation orders.

Regarding the parenting orders, Gill J noted the Independent Children's Lawyer's position that while the existing orders balanced risks in each household, an adjustment was needed to facilitate weekend time with both parents. The court found that the circumstances did not warrant a significant change from the balance struck by Judge Tonkin, but agreed that some structural adjustment was appropriate to allow X weekend time with each parent now that he had started school. The court favoured the mother's proposed 4-3-3-4 arrangement (interpreted as 5-2-2-5) over a week-about arrangement, reasoning that the latter would cause an unduly extended separation from each parent. On the issue of litigation funding, the court acknowledged its jurisdiction to make such an order despite the disputed binding financial agreement, and that the consideration of justice under section 117 of the *Family Law Act 1975* (Cth) was paramount.

The court ordered the discharge of Order 3 of the 26 October 2018 parenting orders, with a new schedule for X to live with each parent operative from 23 April 2021, reflecting a modified shared time arrangement. The mother's applications for restraints, litigation funding, payment of loans, disclosure, and valuation were dismissed, noting an undertaking given by the father on 17 February 2021 in relation to the restraints and payment of loans. The parties were granted liberty to seek relisting of the matter on seven days' notice.

Orders

Orders of the court

CAC695/2018

BETWEEN:

MS TIRADO

Applicant

AND:

MR RICHMOND

Respondent

INDEPENDENT CHILDREN’S LAWYER

Other

ORDER MADE BY:

GILL J

DATE OF ORDER:

20 APRIL 2021

THE COURT ORDERS THAT:

Parenting orders

1. Order 3 of the orders of Judge Tonkin of 26 October 2018 is, from 23 April 2021, discharged, and from that date the following order is operative:

2. X shall live with each of his parents in the following manner:

(a) With the mother from Friday at the commencement of school (or 9 am if not a school day) until the commencement of school (or 9 am if not a school day) the following Wednesday.

(b) With the father from Wednesday at the commencement of school (or 9 am if not a school day) until the commencement of school (or 9 am if not a school day) the following Monday.

(c) With the mother from Monday at the commencement of school (or 9 am if not a school day) until the commencement of school (or 9 am if not a school day) the following Wednesday.

(d) With the father from Wednesday at the commencement of school (or 9 am if not a school day) until the commencement of school (or 9 am if not a school day) the following Friday.

Restraints

3. Order 3 sought in the mother’s application in a case filed 16 November 2020 seeking restraints be imposed upon the father is, noting the undertaking given by the father on 17 February 2021, dismissed.

Litigation funding orders

4. Order 4 sought in the mother’s application in a case filed 16 November 2020 seeking litigation funding is dismissed.

Payment of loans

5. Orders 5 and 6 sought in the mother’s application in a case filed 16 November 2020 seeking restraints be imposed upon the father is, noting the undertaking given by the father on 17 February 2021, dismissed.

Disclosure

6. Orders 14, 15 and 16 of the orders sought by the mother in relation to disclosure are dismissed.

Valuation

7. Order 17 of the orders sought by the mother in relation to valuation is dismissed.

Relisting

8. The parties are at liberty to seek the relisting of this matter on seven days’ notice in writing.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

The Independent Children’s Lawyer’s (“the ICL”) position is that there is an absence of evidence of significant change since the making of orders by Judge Tonkin on 26 October 2018, and that those orders for equally shared time balanced and ameliorated the risks asserted to arise in each of the households, but that there required some adjustment to enable X to have weekend time with both parents.Conclusion in relation to the child related orders The Orders made by Judge Tonkin, as described by the ICL, balanced the risks in each household. They did so in a manner designed to give X the benefits of meaningful relationships with each parent, while at the same time, ameliorating the risks alleged to be posed by each, whether of exposure to, or being subjected to violence on the part of the father, or exposed to emotional abuse or inadequate parenting by the mother. The matters raised by the parties continue to fall within these areas of concern. The circumstances identified by the parties do not indicate that X’s best interests, particularly as indicated by these primary considerations, call for change from the balance as struck by Judge Tonkin, pending a resolution of the issues at final hearing. However, as indicated by the parties’ agreement as to the need for such, some change in the structure of the balance is required. It is appropriate that X have weekend time with each of his parents now that he has started school. The issue is whether that should be reflected in the 4-3-3-4 arrangement posed by the mother, or week about as posed by the father. I am unable to formulate 4-3-3-4 orders to effect weekend rotation and assume 5-2-2-5 was intended. It is the former that should prevail. X should not be exposed to the marked change that would be brought about by the extended separation from each parent which would be caused by a week about arrangement. Accordingly, it is the mother’s fall-back position that should be adopted.LITIGATION FUNDING The parties are in dispute regarding the efficacy of a purportedly BFA. The mother seeks that it not be regarded as binding. The father seeks that it be relied upon to exclude the mother from making a property application. In order to pursue that application, the mother seeks litigation funding under the costs power contained at s 117 of the Family Law Act 1975 (Cth) (“the Act”). It was accepted by the parties that, as set out at [8] of Salvage & Fosse [2020] FamCAFC 144, jurisdiction resides in the Court to make such an order despite the presence of the disputed BFA. In order to make such an order, the Court is to consider the terms and considerations of s 117. An order for the payment of costs pursuant to s 117 is predicated upon whether the circumstances render it just to make the order, in the context of a starting point that each party should bear their own costs. In In Marriage of Zschokke (1996) 133 FLR 375 at 391, this was also described as the consideration of the “requirement of justice”.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.