Tiede & Friso

Case [2024] FedCFamC1F 316

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tiede & Friso [2024] FedCFamC1F 316

File number(s): CAC 157 of 2022
Judgment of: CURRAN J
Date of judgment: 14 May 2024
Catchwords: FAMILY LAW – PARENTING – Where the proceedings have been consolidated – Where there are two respondent mothers – Where orders made by consent for the respondent mothers to have sole parental responsibility for their respective children and for the father to spend no time with them – Where the father has perpetrated family violence – Where the children have been exposed to family violence – Whether the father should be permitted to send letters, cards, and gifts to the children – Whether restraints should be made against the parties – Where the father poses an unacceptable risk of harm – Whether there is a risk to the parenting capacity of the respondent mothers – Where the father permitted to send cards and gifts  
Legislation:

Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 67ZC

Cases cited:

A v A (1998) FLC 92-800

Bayer & Imhoff [2010] FamCA 532

Dunst & Dunst [2016] FamCAFC 15

Eastley & Eastley (2022) FLC 94-094

Grant & Grant (1994) FLC 92-506

Helbig & Rowe [2016] FamCAFC 117

Hollister & Gosselin [2016] FamCA 759

Isles & Nelissen (2022) FLC 92-092

Keane & Keane (2021) 62 Fam LR 190

Loddington & Derringford (No.2) [2008] FamCA 925

Mazorski & Allbright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Re Andrew (1996) FLC 92-692

Rice & Asplund (1979) FLC 90-725

Russell & Close [1993] FamCA 62

Division: Division 1 First Instance
Number of paragraphs: 141
Date of hearing: 29 April 2024 – 3 May 2024
Place: Canberra
Counsel for the Applicant: Mr Sabharwal
Solicitor for the Applicant: Prudential Legal Solutions
Counsel for the First Respondent: Mr Stagg
Solicitor for the First Respondent: Jeanine Lloyd & Associates
Counsel for the Second Respondent: Ms Baker-Goldsmith
Solicitor for the Second Respondent: Mazengarb Family Lawyers
Solicitor for the Independent Children's Lawyer: Legal Aid ACT

ORDERS

CAC 157 of 2022

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

MR TIEDE

Applicant
AND:

MS FRISO

First Respondent

MS MILTON

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

14 MAY 2024

THE COURT ORDERS THAT:

X and Y

1.X, born 2017 (“X”) and Y, born 2017 (“Y”) shall have no contact with the father, Mr Tiede, save that the father is at liberty to send to X and Y a card and/or a gift simultaneously on no more than four occasions per calendar year.

2.For the purposes of order 1 above:

(a)The father is to ensure his communication does not refer to any dispute he has with Ms Milton or his previous domestic partners, does not contain any negative or otherwise derogatory content regarding Ms Milton or his previous domestic partners, the extended maternal family, or the extended paternal family, and is child-focused.

(b)Ms Milton…

Continue reading Tiede & Friso

Sign in free to access the full text

Details
AGLC
Tiede & Friso [2024] FedCFamC1F 316
Case
[2024] FedCFamC1F 316
Decision Date

CaseChat Overview and Summary

The case of Tiede & Friso involves a father seeking parenting arrangements with his children, Z, X, and Y. The court was tasked with determining whether the father should be permitted to maintain any form of communication with his children, given the history of family violence and the potential risk of harm. The children, aged between three and seven, have not had any contact with their father for some time. The court considered the best interests of the children, focusing on the potential for psychological harm and the impact of communication on their well-being. The proceedings were consolidated, and the court examined the evidence presented by both the father and the mothers, including expert opinions and family reports.

The primary legal issue was whether any form of communication from the father to the children would expose them to an unacceptable risk of harm. The court had to balance the father's right to maintain a relationship with his children against the potential psychological harm that such contact might cause. The court also considered whether there was any risk to the parenting capacity of the mothers and whether the father posed an unacceptable risk of harm to the children. Ultimately, the court had to decide if there were any circumstances under which the father could safely communicate with the children.

The court found that the orders made were in the best interests of the children. The father was permitted to send cards and gifts to the children up to four times a year, but he was strictly prohibited from making any contact that could be harmful. The mothers were granted discretion over whether to share the cards and gifts with the children. The court also imposed restraints on the parties to prevent them from consuming illicit substances and making negative comments about each other in the presence of the children. The Independent Children's Lawyer and the Court Child Expert were ordered to explain the court's decision to the children. The mothers were granted the authority to apply for passports and travel internationally without the father's consent.

The court concluded that the orders would allow the father to maintain a connection with the children, potentially paving the way for future proceedings if he demonstrates significant improvement. The court emphasised that the current orders were designed to protect the children from harm while still allowing for some form of contact with their father. The decision was made with careful consideration of the children's views, their relationship with their parents, and the capacity of each party to meet their needs.

Orders

Orders of the court

CAC 157 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TIEDE

Applicant

AND:

MS FRISO

First Respondent

MS MILTON

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

14 MAY 2024

THE COURT ORDERS THAT:

X and Y

1. X, born 2017 (“X”) and Y, born 2017 (“Y”) shall have no contact with the father, Mr Tiede, save that the father is at liberty to send to X and Y a card and/or a gift simultaneously on no more than four occasions per calendar year.

2. For the purposes of order 1 above:

(a) The father is to ensure his communication does not refer to any dispute he has with Ms Milton or his previous domestic partners, does not contain any negative or otherwise derogatory content regarding Ms Milton or his previous domestic partners, the extended maternal family, or the extended paternal family, and is child-focused.

(b) Ms Milton is at liberty to review the contents of any cards and or gifts she receives from the father for X and Y.

(c) Within 21 days of the date of these Orders, Ms Milton shall, through their respective lawyers, provide the father with a postal address to where the cards and letters for X and Y may be sent.

(d) It is at Ms Milton’s discretion to provide any such cards and / or gifts she receives to X and Y.

3. Within 30 days of the of these Orders, the Independent Children’s Lawyer and the Court Child Expert, Ms B, shall meet with X and Y to explain these Orders.

4. The mother, Ms Milton, shall be granted leave of s 121 of the Family Law Act 1975 (Cth) (“the Act”) to provide a copy of the Family Report of Ms B to any mental health professional or general practitioner treating the either of children or herself.

Passport and international travel

5. The mother, Ms Milton, be allowed by this Order to apply pursuant to section 11 of the Australian Passports Act 2005 (Cth) to permit the renewal and/or issue of an Australian Passport for the children without requiring the consent of the father.

6. The mother, Ms Milton, be allowed by this Order to travel outside of the Commonwealth of Australia with the children without the consent of the father.

Z

7. Z born 2021 (“Z”) shall have no contact with the father, Mr Tiede, save that the father is at liberty to send to Z a card and/or a gift on no more than four occasions per calendar year.

8. For the purposes of Order 7 above:

(a) The father is to ensure his communication does not refer to any dispute he has with Ms Friso or his previous domestic partners, does not contain any negative or otherwise derogatory content regarding Ms Friso or his previous domestic partners, the extended maternal family, or the extended paternal family, and is child-focused.

(b) Ms Friso is at liberty to review the contents of any cards and or gifts she receives from the father for Z.

(c) Within 21 days of the date of these orders, Ms Friso shall, through their respective lawyers, provide the father with a postal address to where the cards and gifts for Z may be sent.

(d) It is at Ms Friso’s discretion to provide any such cards and / or gifts she receives to Z.

9. The mother, Ms Friso, shall be granted leave of s 121 of the Act to provide a copy of the Family Report of Ms B to any mental health professional or general practitioner treating the child or herself.

Passport and international travel

10. The mother, Ms Friso, be allowed by this Order to apply pursuant to section 11 of the Australian Passports Act 2005 (Cth) to permit the renewal and/or issue of an Australian Passport for the child without requiring the consent of the father.

11. The mother, Ms Friso, be allowed by this Order to travel outside of the Commonwealth of Australia with the child without the consent of the father.

Restraints

12. The parties are restrained from consuming illicit substances, including marijuana, during any period they have care of any child of these proceedings.

13. The parties are restrained from making critical or unkind comments about any of the other parties in the presence or hearing of any child of these proceedings.

Provision of reports to treaters

14. The father shall be granted leave of s 121 of the Act to provide a copy of the Family Report of Ms B to his psychologist.

15. The father shall be granted leave of s 121 of the Act to provide a copy of the Psychological Report of Mr C to his psychologist.

Discharge of Independent Children’s Lawyer

16. The independent children’s lawyer shall be discharged 14 days after compliance with order 3 above.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The primary issue for determination as to whether communication of any form is in the best interests of the children is informed by whether such communication would expose the children to an unacceptable risk of harm due to psychological harm to them, or to their respective mothers. Z, the daughter of the first respondent mother, is only three years of age, has never met her father and does not know who he is. X and Y, the children of the second respondent mother, are twins aged seven, who know of and remember spending time with their father. The children spend time with one another, and spend time with the paternal grandparents and their other half siblings D and F.BACKGROUND The father and the first respondent mother commenced a relationship in 2020. They separated on a final basis in January 2021, and their daughter Z was born in 2021. The father commenced proceedings in respect of Z in February 2022. Z was born after her parents’ separation. The father has not met Z. The father and the second respondent mother commenced a relationship in 2016. The twins were born in 2017. The parties were married in 2019 and final separation occurred in November 2019. After separation, the twins spent time with their father on an ad hoc basis by agreement. There was an incident in late 2020 when the children were spending time with the father and the first respondent mother (who was pregnant with Z) in which the children were exposed to an incident of family violence between the first respondent mother and the father, and the police and ambulance service attended. The last time that X and Y had any communication with the father was in 2021 on their birthday, when the mother alleges that he said over FaceTime “next time I have you, I will make sure it’s just me and you and we will then all disappear.” The mother terminated the call and the children have not communicated with their father since that time. The father commenced proceedings in respect of X and Y in June 2022. The children currently spend no time and have no communication with the father. There have not been any parenting orders made in these proceedings. The proceedings were consolidated on 26 October 2022 by orders of a Judicial Registrar.MATERIAL RELIED UPON The father relied upon:(a)his Initiating Application filed 1 February 2022; (b)Response to Initiating Application filed 24 March 2022(c)affidavit of Ms H filed 5 April 2022; (d)his Initiating Application filed on 30 August 2022; (e)affidavit of Mr C filed 31 August 2023; (f)Response to Final Orders file 23 October 2023; (g)affidavit of the first respondent mother filed 8 September 2023; (h)his affidavit filed 22 September 2023; (i)affidavit of Mr C filed 28 October 2023; (j)his affidavit filed 16 April 2024; (k)ICL Tender Bundle filed 15 April 2024; (l)Family Report of Ms B filed 27 November 2023; and(m)affidavit of Ms J filed 26 April 2024. The first respondent mother (Ms Friso) relied upon:(a)her Response to Initiating Application filed 23 October 2022; (b)her affidavit filed 19 October 2023;(c)her affidavit filed 8 September 2023; (d)affidavit of Mr C filed 31 August 2023; (e)affidavit of Mr C filed 28 October 2023; and(f)Family Report of Ms B filed 27 November 2023.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Much reference was made in submissions about the institution of further proceedings in the event that the father continues to better himself and implements the recommendations of the experts who gave evidence. In my view, the orders made are in the best interests of the children and allow the father to maintain a connection to the children in some respect, which may lead to the institution of further proceedings. Should the father demonstrate a change in circumstances to meet the threshold of Rice v Asplund (1979) FLC 90-725, he will be at liberty to pursue such orders that he seeks. CONCLUSION Having consideration to all the evidence, I conclude that the orders are in the best interests of the children.

Ratio Decidendi

Legal Principle Established

The ICL and the father sought an order that requires the ICL and the Court Child Expert to meet with X and Y to explain the effect of these orders. No submissions were made as to why that would not be appropriate. I am satisfied that it is an order in relation to the welfare of the children pursuant to s 67ZC and accordingly I make that order.ADDITIONAL CONSIDERATIONSs 60CC(3)(a) - Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views This has been addressed in the body of the judgment above. s 60CC(3)(b) - the nature of the relationship of the child with each of the child’s parents and other persons (e.g. grandparents) This has been addressed in the body of the judgment above. s 60CC(3)(c) - the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child This is not a factor relevant to this determination. s 60CC(3)(ca) - the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child This is not a factor relevant to this determination. s 60CC(3)(d) - the likely effect of any changes in the child’s circumstances For the twins, X and Y, the orders will modestly change their circumstances in that they will have contact from their father, who they remember, and who they have not had contact with for some years. The frequency of such contact is limited, and as such will not change their circumstances markedly. The receipt of communication from the father will change Z’s circumstances. In the day to day, for the same reasons as for the twins, it is unlikely to markedly change her circumstances. However, she will soon become aware of her father and who he is, which will represent a change to her circumstances, which is to be managed and controlled by the first respondent mother who has indicated that she would seek out support for Z during this period. s 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis This is not a factor relevant to this determination. s 60CC(3)(f) - the capacity of the each of the parents and any other person to provide for the needs of the child (e.g. emotional and intellectual needs) The respondent mothers have each demonstrated that they are attuned to the emotional and intellectual needs of the children in their preparedness to obtain professional help and care for each of them. This is not in dispute. The father’s capacity to provide for the needs of the child is limited against the background of family violence and his lack of insight. In my view, the orders made ameliorate any risk that arises from his lack of capacity to provide for their needs.s 60CC(3)(g) - the maturity, sex, lifestyle and of the child and of either of the child’s parents