TAMLYN & TAMLYN - [2020] FCCA 89

FEDERAL CIRCUIT COURT OF AUSTRALIA

TAMLYN & TAMLYN

[2020] FCCA 89

Catchwords:
FAMILY LAW – Parenting – where there are three subject children – breakdown of relationship between parents – where best interest of the children considered – where mother seeks sole responsibility – where father seeks equal shared parental responsibility – where factors under s 60CC of the Family Law Act 1975 (Cth) are considered – where there is evidence of family violence – presumption in favour of shared parental responsibility rebutted – where contact between the father and the children should be limited to telephone or video link – held that it is in the children’s best interests that they live with the mother and that the mother have sole parental responsibility – PROPERTY – settlement in relation to marriage – each party seeks adjustment of property in their favour – need for finality – just and equitable distribution.

Legislation:

Australian Passports Act 2005 (Cth), s.11

Evidence Act No 25. 1995 (Cth), s.76

Family Law Act 1975 (Cth), ss.43, 60, 61, 65, 68, 75, 78, 79, 106, 117

Cases cited:

B & B (1993) FLC 92-357

Bevan & Bevan (2013) FLC 93-545

Dundas & Blake (2013) FLC 93-552

Kennon & Kennon (1997) FLC 92-757

Marvel v Marvel (2010) 43 Fam LR 348

M v M [1988] HCA 68

Petruski v Balewa (2013) 49 Fam LR 116

Rice v Asplund (1978) 6 Fam LR 570

Sebastian & Sebastian (No. 5) [2013] FamCA 191

Zavala & Zavala [2019] FCCA 338

Applicant:

MS TAMLYN

Respondent:

MR TAMLYN

File Number:

PAC 1404 of 2017

Judgment of:

Judge Humphreys

Hearing dates:

25 November 2019 – 29 November 2019

Date of Last Submission:

29 November 2019

Delivered at:

Parramatta

Delivered on:

17 January 2020

REPRESENTATION

Counsel for the Applicant:

Mr O'Reilly

Solicitors for the Applicant:

Stanfords Solicitors

Counsel for the Respondent:

Ms Kaiti

Solicitors for the Respondent:

Ark Lawyers

Counsel for the Independent Children's Lawyer:

Dr McConaghy

Solicitors for the Independent Children's Lawyer:

Legal Aid Suburb F

ORDERS

THE COURT ORDERS THAT:
Parenting

That the mother, Ms Tamlyn, shall have sole parental responsibility for the children X, born in 2006, Y, born in 2011 and Z, born in 2011 (hereinafter “the children”).
That the children shall live with the mother.
That the children shall spend no time with the father, Mr Tamlyn, unless otherwise agreed between the parties in writing.
That pursuant to s68B(a) and s68B(b)(i) of the Family Law Act 1975 (Cth), the Court grants an injunction for the personal protection of the children and the mother, hereby restraining the father from:
a)Approaching, contacting or attempting to contact the mother and/or the child/ren except as otherwise provided in the Orders or otherwise agreed to in writing between the parties.
b)Entering, residing and/or attempting to enter any place where the mother and/or the children may, from time to time, reside including but not limited to the mother’s current residential address namely B Street, Suburb C, NSW or approaching within 500 metres of B…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading TAMLYN & TAMLYN

Details

AGLC: Tamlyn and Tamlyn [2020] FCCA 89
Case: [2020] FCCA 89
Decision Date: 17 January 2020

CaseChat Overview and Summary

In the matter of *Tamlyn & Tamlyn*, Judge Humphreys of the Family Court of Australia considered parenting and property settlement disputes between the parents of three children. The mother sought sole parental responsibility, while the father sought equal shared parental responsibility. The court also addressed the division of marital property, with each party seeking an adjustment in their favour and a need for finality.

The primary legal issues before the court were to determine the best interests of the three subject children, considering the factors outlined in section 60CC of the *Family Law Act 1975* (Cth), and whether the presumption in favour of shared parental responsibility was rebutted. The court was required to assess the impact of family violence on the children and their relationships with each parent, and to make orders regarding the children's living arrangements and contact with the father. Additionally, the court had to make orders for a just and equitable distribution of the parties' property.

Judge Humphreys applied the paramount consideration of the children's best interests, as mandated by section 60CA of the Act, and considered the factors under sections 60CC(2) and (3). The court gave greater weight to the need to protect the children from harm over the benefit of a meaningful relationship with the father, particularly in light of evidence of ongoing family violence and the father's non-compliance with court orders and supervised contact centre policies. The court found that the presumption of equal shared parental responsibility was rebutted due to the family violence.

Consequently, the court ordered that the mother have sole parental responsibility for the children and that they live with her. Contact between the father and the children was limited to telephone or video link, and an injunction was granted for the personal protection of the children and the mother, restraining the father from various forms of contact and proximity. Orders were also made regarding property settlement, aiming for a just and equitable distribution and finality.

Orders

Orders of the court

THE COURT ORDERS THAT:

Parenting

That the mother, Ms Tamlyn, shall have sole parental responsibility for the children X, born in 2006, Y, born in 2011 and Z, born in 2011 (hereinafter “the children”).

That the children shall live with the mother.

That the children shall spend no time with the father, Mr Tamlyn, unless otherwise agreed between the parties in writing.

That pursuant to s68B(a) and s68B(b)(i) of the Family Law Act 1975 (Cth), the Court grants an injunction for the personal protection of the children and the mother, hereby restraining the father from:

a) Approaching, contacting or attempting to contact the mother and/or the child/ren except as otherwise provided in the Orders or otherwise agreed to in writing between the parties.

b) Entering, residing and/or attempting to enter any place where the mother and/or the children may, from time to time, reside including but not limited to the mother’s current residential address namely B Street, Suburb C, NSW or approaching within 500 metres of B Street, Suburb C, NSW.

c) Entering or attempting to enter any place where the mother works.

d) Entering or attempting to enter any place where the children attend school, after school care or vacation care.

e) Entering or attempting to enter, or attending at any extracurricular activity attended at the by children.

f) Assaulting, molesting, harassing, threatening or stalking the mother and/or the children.

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

In coming to this conclusions, I had particular regard to s 60CA of the Act, which sets out: Child’s best interests paramount consideration in making a parenting orderIn deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration. In determining what is in the child’s best interest, the Court must consider the matters set out in s 60CC(2) and s 60CC(3) of the Act. In applying these considerations, in accordance with s 60CC(2)(a) of the Act, greater weight must be given to the need to protect the child over the benefit to the child having a meaningful relationship with the parents. I am satisfied that the children have a meaningful relationship with their mother and will benefit from continuing that very stable relationship. I am satisfied that both Y and Z enjoy spending time with their father but are only able to do so in the limited context of supervised contact. I am satisfied that X does not wish to live with or spend overnight time with his father and that if forced to do so, would run away. I am satisfied that less weight should be given to Y and Z’s views as compared to X’s, as they are too young to fully appreciate the impact of being exposed to domestic violence. I am satisfied that the children have a warm and loving relationship with their mother, who they view as their primary carer. The relationship with their father has been interrupted as a result of on-going domestic violence which has resulted in ADVOs excluding the father from the family home. I am satisfied that each of the children still love their father and would like to spend time with him, but that the capacity to do so has been negatively impacted by his continuing family violence and his unwillingness to comply with orders of the Court requiring that he undertake parenting and other courses, as well as his refusals to comply with directions and policies of supervised contact centres that he not discuss the on-going Court proceedings with the children. It is common ground that the father has continued to make contributions by way of child support. It is noted however, because he has been in stable employment and that the Child Support Agency has put in place a garnishee order on his wages, his capacity to not make child payments is limited. I note however, that the father has made numerous promises to his children that he would provide them with birthday and or Christmas presents but has not done so. The current arrangement is that the children are residing with their mother. They are also residing, in what they regard as their family home, which is close to their school. Contact with their father has been limited to supervised contact at family contact centres. During the course of his evidence, Mr Q stated that he had no doubt that the children enjoyed spending time with their father and that they would be “sad” if contact were further restricted. As against this, there is the expressed view of X not wishing to spend unsupervised overnight time with his father and that all of the children are generally afraid of what their father could do to their mother if their father were to engage in further violence.