Tilmund & Tilmund (No 2)
[2024] FedCFamC1F 353
•19 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tilmund & Tilmund (No 2) [2024] FedCFamC1F 353
File number(s): LEC 78 of 2015 Judgment of: BAUMANN J Date of judgment: 19 April 2024 Catchwords: FAMILY LAW – PARENTING – Where four of the five children changed residence from the mother to the father four months prior – Where the Court considered what time the children should spend time with mother on an interim basis pending an updating family report Legislation: Family Law Act 1975 (Cth) Cases cited: Tilmund & Tilmund [2023] FedCFamC1F 637 Division: Division 1 First Instance Number of paragraphs: 23 Date of hearing: 17 April 2024 Place: Brisbane Counsel for the Applicant: Mr P Smart Solicitor for the Applicant: Paul Denmeade & Co Counsel for the Respondent: Mrs R Bassano Solicitor for the Respondent: Michelle Porcheron Lawyers Solicitor for the Independent Children's Lawyer: Universal Law ORDERS
LEC 78 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TILMUND
Applicant
AND: MS TILMUND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
19 APRIL 2024
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That the Orders 2, 3, 5, 6, 7, 14, 15, 18, 19, 20, 21 and 22 of the Orders made 4 August 2023 remain in full force and effect.
2.That Orders 1, 2 and 3 of the Orders made 23 January 2024 remain in full force and defect.
3.That the children, W born 2009, X born 2011, Y born 2012 and Z born 2014 (“the children”) spend unsupervised time with the mother, unless otherwise agreed in writing between the parents, as follows:
(a)On Saturday, 27 April 2024 between 9.00am and 4.00pm;
(b)On Saturday, 4 May 2024 between 9.00am and 4.00pm;
(c)On Sunday, 12 May 2024 (Mother’s Day) between 9.00am and 4.00pm;
(d)Between 9.00am Saturday, 18 May 2024 and 4.00pm Sunday, 19 May 2024 and alternate weekends commencing 9.00am on Saturday, 1 June, 15 June and 29 June 2024 to 4.00pm the next Sunday;
(e)Between 4.00pm Friday, 12 July 2024 to 4.00pm Friday, 19 July 2024, with all changeovers for time prescribed under Order 3(a),(b), (c), (d) and (e) occurring at K Counselling, Suburb N at the joint expense of the parties; and
(f)Commencing Friday, 26 July 2024 and each alternate weekend during the New South Wales school term three (3), from after school Friday to 4.00pn Sunday, with changeovers at the commencement to be at the children’s respective schools and with changeovers at conclusion to be at K Counselling, Suburb N.
4.That the parents are hereby restrained from passing messages to each other via the children.
5.That by no later than 4.00pm on 3 September 2024, each party file and serve a precise minute of their final Orders sought.
6.That these proceedings be adjourned for Case Management Hearing at 9.30am on 10 September 2024 in the Federal Circuit and Family Court of Australia (Division 1) at City O, by telephone.
7.That all parties and their legal representatives have leave to appear by telephone on 10 September 2024 by using the Microsoft Teams conferencing system as follows:
(a)They shall click a link (if accessing this Order electronically) to join the by 9.25am (AEST) on 10 September 2024; or
(b)They shall each telephone by 9.25am (AEST) on 10 September 2024;
(c)They shall each then enter the pass code; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tilmund & Tilmund has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
(Settled from the oral reasons delivered)BAUMANN J
After two days of a final hearing in July 2023, interim Orders in respect of the five children of the parents’ relationship were made by consent. Those children being V born 2008 (now nearly 16 years of age); W born 2009 (now nearly 15 years of age); X born 2011 (now nearly 13 years of age); Y born 2012 (now 11 years of age); and Z born 2014 (now 10 years of age). As Reasons published at the time reveal, (see Tilmund & Tilmund [2023] FedCFamC1F 637), the context for the interim Orders (where the parents had separated in December 2014), was an attempt to deal with two specific concerns, amongst others, relating to the future parenting arrangements for the children, where the children were not spending regular and consistent time with the father, namely:
(a)the mother’s inability to ensure the children were constantly attending school; and
(b)a concern that the mother was not demonstrating support by actions and words for the children’s relationship with the father.
The interim Orders meant that the father’s primary proposal for change of residence (for at least all children, save for V), which was, at the time, supported by the family report writer, Ms G, was not ordered. Since those Orders were made, sadly, difficulties in the mother encouraging the children to spend time with the father continued to some extent and, ultimately, on 23 January 2024, the Court ordered that W, X, Y and Z live with the father on an interim basis – the Court having earlier, on 6 December 2023, ordered the children, from the 13 January 2024, to spend time continuously with the father.
The Order made on 23 January 2024 was not seriously opposed by the mother at the time, although she was reluctant not to be the primary carer, as she had been for many years. The eldest child, V, was to remain living with the mother and spend time with the father in accordance with her wishes. At the time, the Court was concerned that the relationship between V and her four younger siblings would be affected by the separation of primary residences. That still is a concern. However, in circumstances where the mother acknowledged in her affidavit difficulties in ensuring the children spent time with the father, and her inability to get the children to school consistently, caused the Independent Children’s Lawyer to propose a change of residence and the Court agreed.
Orders of 23 January 2024 provided for the children to, as I say, communicate each Sunday and each Wednesday with the mother. This arrangement has encountered some difficulties.
Thankfully, the evidence from the father, at times corroborated by school records, now is that the children are not only regularly attending school, but that they are progressing, in all the circumstances, reasonably well.
When the matter came before the Court on 8 March 2024 for an update, it was clear from the submissions made at that time that it was now important to create some opportunities for the children to spend physical time consistently with their mother. That is something I encouraged the parties to seek to resolve by agreement, if possible. They were not able to do so. As such, a listing for an interim hearing on 17 April 2024, some two days ago, was required.
COMPETING PROPOSALS
The parties’ competing proposals for interim orders were filed with the Court identified that on an interim basis, the following orders were not to be varied at this stage – namely, at least:
(a)Orders 2, 5, 6 and 7 made 4 August 2023, where V was to live with the mother, who was to have sole parental responsibility with conditions, and spend time with the father in accordance with her wishes; and
(b)Order 3, for the parents to have equal shared parental responsibility for the four younger children, and the specific issues Orders made 4 August 2023, Orders 14, 15, 18, 19, 20, 21 and 22.
However, the essential dispute to be determined by the Court now, on an interim basis, is what time the children should spend with the mother, pending a fresh family report and a further hearing if necessary.
In that regard, the Court had ordered on the last occasion for an updated family report pursuant to section 62G of the Family Law Act 1975 (Cth) (“the Act”) by Ms G, who prepared the first report. I am informed that that report, with interviews to occur some weeks before then, will be available and published by 30 July 2024. I proceed on that understanding. I propose to conduct a further Case Management Hearing after the report issues to ascertain if a further trial time is necessary, and if so, what remains to be issues for determination.
However, for the current interim hearing which I conducted, I make the following observations:
(a)The Independent Children’s Lawyer made oral submissions by telephone and proposed an order which formed part of Exhibit 1. The effect of which was that from the beginning of term two – which will be Monday, 29 April 2024 – unsupervised time should occur between the children and the mother each Saturday between 9.00am to 5.00pm, with changeovers at K Counselling at Suburb N;
(b)The father, who relied on an affidavit filed 9 April 2024 and was represented by Mr Smart of Counsel proposed a further six months of supervised time each Saturday at F Contact Centre, to be followed by six months of unsupervised time from 9.00am to 3.00pm weekly, alternating between Saturday and Sunday. However, after considering the Independent Children’s Lawyer’s proposals – but with some slight amendments – the father adopted the Independent Children’s Lawyer’s proposal; and
(c)Not surprisingly, considering the history of this matter, and the history of care, the mother’s proposal and oral submissions delivered on her behalf by Mrs Bassano of Counsel by telephone, and relying upon her affidavit filed 15 April 2024, initially sought orders to immediately begin unsupervised time, and then to progress so as to include every weekend (Friday to Monday) and seven continuous nights in the forthcoming end of term two school holidays in June 2024.
To the mother’s credit, after some exchanges during submissions between the bench and the legal representatives, when the Court raised its concerns at this stage on the untested evidence, at least about:
(a)the difficulties the mother might again experience ensuring the children attend school, if that was her obligation on a Monday, by time being extended to a Monday;
(b)the benefit of the children spending at least some weekend/recreational time in the home of the father, rather than all weekends being spent with the mother; and
(c)whether a proper weighing up of the father’s concerns about the mother’s undermining him and seeking to encourage the children to return to her care and the need in the children’s best interest to spend meaningful physical time with the mother requires at this stage the unsupervised time, when it occurs, to be limited and not including overnight time,
the mother varied her proposal.
DISCUSSION
In view of the history of this matter, the father does not unreasonably hold concerns that the mother may be unable – passively – or could overtly influence the children to seek to return or express a view to return to her care. The Orders the Court made in January 2024 were not consistent with the children’s wishes at that time. I do not know what their wishes are at the moment. However, the Order that the children live with the father is not currently being challenged by the mother and as a result, it is to be expected she will, until final orders are made or that order for interim residence changed for the four children, abide by the tenor and intention of that Order.
I could not ignore the real prospect that the children might express a wish to again live with their mother. However, the efforts by the father – as he said in his evidence in the witness box – he felt he was capable of achieving in getting the children to school consistently, is a significant and important factor. I did not wish, after just one successful term, to put that progress at risk. I am not currently persuaded that the mother could deliver the same results as the father for school attendance at the moment . However, as a result, at this stage, the time the children should spend with the mother has to be limited to weekend time and possibly school holiday time. Of course, by doing so, this enables V to spend time with her siblings, which I regard as an important consideration in the best interest of all the children.
Unless otherwise re-listed at the initiation of the Independent Children’s Lawyer, and with a family report only available by the end of July 2024, I propose to list the matter for a further Case Management Hearing, and in the order I publish today, at 9.30am, Queensland time on 10 September 2024. This will give the parents – assisted no doubt by the Independent Children’s Lawyer – an opportunity, after the family report issues, to try to either negotiate a final form of order or at least seek to narrow the issues in dispute. These children need less conflict between the parents in their life, rather than more.
The Orders which I will pronounce today and send to the parties by email when the Court rises, which I regard as in the best interests of the children at this stage, take into account the concerns of the father and the need for the children to have meaningful time with their mother, within the following parameters:
(a)It is my view that time should commence unsupervised on and from Saturday, 27 April 2024, which is the Saturday before school returns for the second term in New South Wales;
(b)During the term two school term, the time children shall spend with the mother should graduate to alternate weekends, but after some whole day visits on 27 April and 4 May;
(c)Then, I propose to order that the time for the rest of term two shall be each alternate weekend, effectively, from 9.00am Saturday to 4.00pm Sunday, with changeovers at K Counselling, Suburb N. The parties are to equally share the cost of the contact centre;
(d)During the end of term two school holidays, the children shall spend seven days with the mother as agreed – and if not agreed, then in terms of my order, the period which begins with the middle Friday for one week;
(e)Commencing 26 July 2024, the weekend time during school terms shall increase to after school Friday – changeovers at school – until 4.00pm Sunday;
(f)The Orders I now pronounce make provision for the children to spend time with the mother on Mother’s Day, 12 May 2024;
(g)X, who turns 13 in 2024, can celebrate his birthday with his mother on the previous weekend and with his father on his birthday; and
(h)W, who turns 15 in 2024, can celebrate his birthday in his father’s care before moving to his mother's care.
I am satisfied the children should spend a week with the mother during the end of term two school holidays, as I have already indicated. They should, of course, spend time with the father on Father’s Day, which is – this year – Sunday, 3 September 2024, which in terms of the regime I am putting in place, will occur. All these events – many of them special and celebratory – will take place before the matter returns to my list on the 10 September 2024.
The mother raised issues about the father ensuring the children engage with their established and connected therapist. On an interim basis, I am unable to deal with those concerns and note that I really received no submissions in respect of those concerns.
I am satisfied the father is well aware of his obligations under the current Orders to maintain the therapeutic support for these children and the benefits that children derive from that support.
At this stage I do not propose to make any further interim Orders. Telephone communication or other electronic exchanges between the children and their parent – when not in the parent’s care – should be flexible. The best order for telephone time with children is no order at all. However, for children this age, it does not need to be daily, even though a parent may crave it. The current Order, being Order 2 made on 23 January 2024, for Wednesday communication with the mother, should continue on an interim basis.
The Court notes in the Independent Children’s Lawyer’s minute seems to seek to restrain the parents from passing messages to each other via the children. Whilst the evidentiary foundation for such an order is not apparently clear to me, the sentiment of such order could not be sensibly challenged. On an interim basis, I shall make it.
In making these Orders I accept and understand that the father, from his perspective, is concerned that, notwithstanding what seems to have been a lot of hard work by him since the children came into his care in early January and through the first term of school, that it could all be made more difficult if the mother does not support the children living with him and going to school.
An updated family report will assess some new data about how the children have coped with the change of circumstances. They will be given a chance to express their wishes again. As I have made clear, however, there is no variation at all to the orders I have made on an interim basis about where the five children live, including V. Any attempt to disrupt the living arrangements should encourage the Independent Children’s Lawyer to immediately seek to re‑list the matter before me.
A disruption to the living arrangements without compelling evidence is likely to result in a reduction and/or cessation of time between the children and the mother. That is not in the children’s best interests. These are the reasons that reflects the Orders I have made today, which I find are in the children’s best interests.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 10 June 2024