Tindale & Anor and Biggs - [2013] FamCA 272

FAMILY COURT OF AUSTRALIA

TINDALE AND ANOR & BIGGS

[2013] FamCA 272

FAMILY LAW – CHILDREN – interim – where final consent orders were made in December 2012 – where the maternal grandparents seek orders to spend time with the children and seek that the children spend additional time with the mother – where it was held there has been a significant change in circumstances – where it was in the best interests of the children to make interim orders for time and other communication with the maternal grandparents

Family Law Act 1975 (Cth)

Church & S Overton and Anor [2008] FamCA 952

Treloar & Nepean [2009] FamCAFC 206

APPLICANTS:

Mr Tindale and Ms Tindale

RESPONDENT:

Mr Biggs

FILE NUMBER:

SYC

2399

2011

DATE DELIVERED:

19 April 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

21 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANTS:

Litigants in person

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT:

Orders 3, 4, 5, and 12 made on 10 December 2012 are suspended.
The maternal grandparents are to spend time with R born … February 2008 and S born … November 2009 (“the children”) on the last Sunday of every month from 9.00am to 1.00pm.
In order to facilitate Order 2, the children are to be collected from and delivered to the father’s home.
If the father elects for changeovers to be supervised by a nanny or supervision service, the father is to bear the cost of such service.
In the event that the mother provides written notice to the father that she has skype facilities at C Centre, the father is to facilitate skype communication between the mother and the children on two occasions each week at a time agreed by the parties.
The father is to facilitate skype communication between the children and the maternal grandparents on one occasion each week at a time agreed by the father and the maternal grandparents.
The father invite the maternal grandparents to significant school and extra curricular events involving either or both the children.
The father pass onto the children any age appropriate cards or letters addressed to the children from the maternal grandparents and any age appropriate gifts accompanying those cards or letters.
Both the father and the maternal grandparents are restrained from denigrating or criticising the other party or any member of the other party’s family in the presence or hearing of the children, and each party shall use their best endeavours to ensure that any other person(s) also refrains from such conduct in the presence or hearing of the children.
Except as provided in Order 5, the application by the maternal grandparents for orders in favour of the mother is stood over generally but will be dismissed if the mother files an application for new interim orders on her own behalf.
The application by the father for orders for the children to spend time with the mother is stood over…

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 Tindale & Anor and Biggs

Details

AGLC: TINDALE AND ANOR & BIGGS [2013] FamCA 272
Case: [2013] FamCA 272
Decision Date: 19 April 2013

CaseChat Overview and Summary

The case of Tindale & Anor and Biggs concerned an application before Watts J regarding parenting orders for two children, R and S. The dispute involved the maternal grandparents seeking orders for time with the children, and the father seeking orders for the children to spend time with the mother.

The court was required to determine the interim parenting arrangements for the children, specifically concerning the time the maternal grandparents would spend with them, the facilitation of communication between the children and their mother, and the conduct of the parties towards each other in the presence of the children. The court also considered applications relating to the children spending time with the mother and the appointment of an Independent Children's Lawyer.

Watts J made several interim orders, suspending previous orders and establishing a schedule for the maternal grandparents to spend time with the children. The father was ordered to facilitate collection and delivery for these visits, and to bear the cost if he elected for supervised changeovers. The court also ordered the father to facilitate Skype communication between the mother and the children, and between the children and the maternal grandparents, and to invite the maternal grandparents to significant school and extra-curricular events. Crucially, both the father and the maternal grandparents were restrained from denigrating or criticising each other or their respective families in the presence or hearing of the children. Applications concerning the children spending time with the mother were stood over generally, contingent on the mother filing her own application for interim orders.

Orders

Orders of the court

PENDING FURTHER ORDER, IT IS ORDERED THAT:

Orders 3, 4, 5, and 12 made on 10 December 2012 are suspended.

The maternal grandparents are to spend time with R born … February 2008 and S born … November 2009 (“the children”) on the last Sunday of every month from 9.00am to 1.00pm.

In order to facilitate Order 2, the children are to be collected from and delivered to the father’s home.

If the father elects for changeovers to be supervised by a nanny or supervision service, the father is to bear the cost of such service.

In the event that the mother provides written notice to the father that she has skype facilities at C Centre, the father is to facilitate skype communication between the mother and the children on two occasions each week at a time agreed by the parties.

The father is to facilitate skype communication between the children and the maternal grandparents on one occasion each week at a time agreed by the father and the maternal grandparents.

The father invite the maternal grandparents to significant school and extra curricular events involving either or both the children.

The father pass onto the children any age appropriate cards or letters addressed to the children from the maternal grandparents and any age appropriate gifts accompanying those cards or letters.

Both the father and the maternal grandparents are restrained from denigrating or criticising the other party or any member of the other party’s family in the presence or hearing of the children, and each party shall use their best endeavours to ensure that any other person(s) also refrains from such conduct in the presence or hearing of the children.

10.

Except as provided in Order 5, the application by the maternal grandparents for orders in favour of the mother is stood over generally but will be dismissed if the mother files an application for new interim orders on her own behalf.

11.

The application by the father for orders for the children to spend time with the mother is stood over generally to be dealt with at the same time as any application filed by the mother seeking further interim parenting orders.

12.

Liberty granted to all parties to restore the matter on 14 days notice.

13.

The father is to file and serve a financial statement within 21 days and it is noted that the issue of the appointment of an Independent Children's Lawyer will be dealt with in chambers.

14.

Pursuant to s.65DA(2) and s.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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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