TIFFANY & TIFFANY - [2014] FamCA 556

FAMILY COURT OF AUSTRALIA

TIFFANY & TIFFANY

[2014] FamCA 556

FAMILY LAW – CHILDREN – Undefended Hearing – Where the Mother has not actively participated in the proceedings – Where the Mother has repeatedly sent medical certificates stating she is unfit for court – Where there are concerns regarding the Mother’s mental health – Where the Mother has a history of withholding the child – Where the Father seeks orders that the Mother be restrained from contacting the child and any authority or agency in relation to the child – Where the Father and the Independent Children’s Lawyer agree on final orders to be made

FAMILY LAW – PROPERTY – Undefended Hearing – Where the Mother initiated property proceedings by way of her Response to Initiating Application– Where the Mother has not actively participated in the proceedings – Application for property settlement dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004

Allesch v Maunz (2000) 203 CLR 172
Rice & Asplund (1979) FLC 90-725

APPLICANT:

Mr Tiffany

RESPONDENT:	Ms Tiffany
INDEPENDENT CHILDREN’S LAWYER:	Mr Williams

FILE NUMBER:

BRC

11122

2010

DATE DELIVERED:

11 July 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

11 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Mazur

FOR THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Williams Lawyers

Orders

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

Children’s Proceedings

The Father have sole parental responsibility for the long term and day to day decisions for the child, B (“the child”) born … 2006, including, but not limited to:
1.1.the child’s education;
1.2.the child’s religious and cultural upbringing; and
1.3.issues concerning the child’s health.
The child live with the Father.

The Mother be restrained from removing the child from either the Father’s care or any school or place in which the child is enrolled or attending and from directing, authorising or allowing any other person to do so.

The Mother be restrained from approaching or being near or within

200 metres of the vicinity of:

4.1.any school which the child may be attending;
4.2.the Father’s residence;

4.3 and from directing, authorising or allowing any other person to do so.

The Mother spend time and communicate with the child at such times as are agreed in writing between the Mother and the Father or pursuant to an Order of this Honourable Court.
The Mother be restrained and an injunction issue preventing the Mother from contacting the police, welfare agencies, child protection units, Centrelink, the child’s school or any other authority or agency in any way whatsoever and in particular to:

6.1.enquiring as to the place of residence of the child;
6.2.enquiring as to the welfare of the child;
6.3.enquiring as to the place of residence of the Father;
6.4.enquiring as to the welfare of the Father; or
6.5.providing to them copies of documents, including Court documents and transcripts;

without the written consent of the parties or, alternatively, with the permission of the Court.

Neither parent shall discuss…

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.

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Details

AGLC: TIFFANY & TIFFANY [2014] FamCA 556
Case: [2014] FamCA 556
Decision Date: 11 July 2014

CaseChat Overview and Summary

In the matter of *Tiffany & Tiffany*, Kent J of the Family Court of Australia considered proceedings initiated by the Father concerning the parties' child, B, and property settlement. The Mother had not actively participated in the proceedings, having repeatedly provided medical certificates asserting her unfitness for court due to concerns about her mental health. The Father sought orders restraining the Mother from contacting the child or any authority or agency in relation to the child, with the agreement of the Independent Children’s Lawyer.

The court was required to determine the appropriate parenting orders given the Mother's non-participation and history of withholding the child, as well as the Father's application for significant restrictions on the Mother's contact and communication. Additionally, the court had to consider the Mother's property settlement application, which she had initiated but subsequently failed to prosecute.

Kent J made orders on an undefended basis, granting the Father sole parental responsibility for long-term and day-to-day decisions concerning the child, including education, religious and cultural upbringing, and health matters. The child was ordered to live with the Father. The Mother was restrained from removing the child from the Father's care or school, and from approaching or being within 200 metres of the child's school or the Father's residence. Crucially, the Mother was also restrained from contacting police, welfare agencies, child protection units, Centrelink, the child's school, or any other authority or agency regarding the child or the Father, without the written consent of the parties or the permission of the Court. The Mother's property settlement application was dismissed.

Orders

Orders of the court

IT IS ORDERED ON AN UNDEFENDED BASIS THAT:

Children’s Proceedings

The Father have sole parental responsibility for the long term and day to day decisions for the child, B (“the child”) born … 2006, including, but not limited to:

1.1. the child’s education;

1.2. the child’s religious and cultural upbringing; and

1.3. issues concerning the child’s health.

The child live with the Father.

The Mother be restrained from removing the child from either the Father’s care or any school or place in which the child is enrolled or attending and from directing, authorising or allowing any other person to do so.

The Mother be restrained from approaching or being near or within

200 metres of the vicinity of:

4.1. any school which the child may be attending;

4.2. the Father’s residence;

4.3 and from directing, authorising or allowing any other person to do so.

The Mother spend time and communicate with the child at such times as are agreed in writing between the Mother and the Father or pursuant to an Order of this Honourable Court.

The Mother be restrained and an injunction issue preventing the Mother from contacting the police, welfare agencies, child protection units, Centrelink, the child’s school or any other authority or agency in any way whatsoever and in particular to:

6.1. enquiring as to the place of residence of the child;

6.2. enquiring as to the welfare of the child;

6.3. enquiring as to the place of residence of the Father;

6.4. enquiring as to the welfare of the Father; or

6.5. providing to them copies of documents, including Court documents and transcripts;

without the written consent of the parties or, alternatively, with the permission of the Court.

Neither parent shall discuss these Court proceedings in the presence or hearing of the child or show him any documents relating to these proceedings, and shall not permit any other person to do so.

To the extent that the exception provided for in section 121(9)(a) of the Family Law Act 1975 (Cth) or the other provisions of that sub-section do not otherwise authorise the same, the Independent Children’s Lawyer shall have leave to publish all such documents and information relevant to these proceedings including expert reports to any person or entity providing counselling or psychological/psychiatric treatment to the child.

The Father be permitted to provide a copy of this Order to the child’s school, the police, welfare agencies, child protection units, Centrelink, the child’s school or any other authority or agency.

10.

The Independent Children’s Lawyer be discharged.

Property Proceedings

11.

The Mother’s application for property settlement contained in her Response to Initiating Application filed on 25 February 2011 be dismissed.

IT IS FURTHER ORDERED THAT:

12.

Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

NOTATION:

A. In the event the Mother brings a further application under Part VII of the Family Law Act 1975 (Cth) it would be desirable for Mr Peter Williams, Solicitor, to be

re-appointed as the Independent Children’s Lawyer

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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