FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tolfree & Rutter [2023] FedCFamC1F 442
File number(s): BRC 2133 of 2008 Judgment of: HOWARD J Date of judgment: 8 February 2023 Catchwords: FAMILY LAW – PARENTING – Where the child currently lives with the mother and spends alternate weekends with the father – Where it is neither necessary nor desirable to make findings as to historical allegations of family violence – Consideration of the best interests of the child – Where the child is 16 years of age – Where the child expressed his wish to live in a week about shared care arrangement – Where it is in the child’s best interests to spend equal time with each parents – Equal shared parental responsibility. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 65L
Evidence Act 1977 (Qld) s 93A
Cases cited: Baghti & Baghti & Ors [2015] FamCAFC 71
Beckham v Desprez (2015) 55 Fam LR 310
Bondelmonte v Bondelmonte [2017] 259 CLR 662
Cox & Pedrana (2013) FLC 93-537
Cubbin & Cutler [2018] FamCAFC 84
Eagle & Scarlett (No. 2) [2020] FamCAFC 291
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Johanson & Johanson [2022] FedCFamC1A 74
Whisprun Pty Ltd v Dixon [2003] 234 CLR 492
Division: Division 1 First Instance Number of paragraphs: 52 Date of hearing: 8 February 2023 Place: Brisbane Counsel for the Applicant: Mr Nelson Solicitor for the Applicant: County to Coast Lawyers Counsel for the Respondent: Mr Purcell Solicitor for the Respondent: Hofstee Lawyers Counsel for the Independent Children’s Lawyer: Ms Brereton Solicitor for the Independent Children’s Lawyer: Smithson Lawyers ORDERS
BRC 2133 of 2008 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TOLFREE
Applicant
AND: MS RUTTER
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
HOWARD J
DATE OF ORDER:
8 FEBRUARY 2023
THE COURT ORDERS BY CONSENT ON A FINAL BASIS:
1.That all previous parenting plans and Orders be discharged.
2.That the parents share equal parental responsibility for the child, X born 2006.
3.That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and shall make a genuine effort to come to a joint decision prior to the making of any decision about such issues, which include but are not limited to the children’s:
(a)Education;
(b)Religious and cultural upbringing;
(c)Relocating the residence of the children so that the existing parenting arrangements become impracticable; and
(d)Significant medical intervention for the children.
4.That the Mother and Father have the sole responsibility for all decisions concerning the children’s day-to-day care, welfare and development for the time that the children are in either parent’s care.
5.That the parents spend time and communicate with the children on the following special days at all times agreed between the parents and failing agreement as follows (and the time referred to in Order 5 shall be suspended during these times)
(a)For school holidays…
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CaseChat Overview and Summary
The legal issues centered on the interpretation of the "best interests of the child" principle, particularly in the context of maintaining sibling relationships and the potential benefits to X of having contact with Mr B. The court needed to consider whether the historical concerns about Mr B had dissipated and whether the proposed restriction would negatively impact X's relationship with his sibling Y. The evidence presented showed that X and Y had already developed a meaningful relationship, which was beneficial for X. The father's testimony suggested that any previous risks associated with Mr B had diminished, and there was no evidence to support the mother's proposal.
The court carefully examined the evidence and concluded that the historical concerns about Mr B were no longer relevant. The court accepted the father's testimony that contact between X, Mr B, and Y was beneficial and that X was not at risk. The mother's proposal to restrict X's contact with Mr B was deemed not to be in X's best interests. The Independent Children’s Lawyer supported the father’s position, and the court was not persuaded by the mother’s arguments to the contrary. Consequently, the court refused to make the proposed order restricting X's contact with Mr B.
The court’s final order was that the proposed order restricting X's contact with Mr B would not be made, as it was not in the best interests of X. The court emphasized the importance of maintaining meaningful relationships, particularly between siblings, and found no substantial evidence to support the mother's concerns. The court's decision underscored the paramount importance of the child's best interests in family law matters, taking into account the evolving dynamics of family relationships.
Orders
Orders of the court
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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
The Court is required by reason of Part VII of the Family Law Act 1975 (Cth) (“the Act”) to regard the best interests of the child as the paramount consideration. Section 60CA of the Act states:“s 60CAIn 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.”How a Court is to determine what it in a child’s best interests is then set out in s 60CC of the Act. There is no doubt that there is a benefit to young X of having a meaningful relationship with both of his parents, and indeed, the evidence in this case is clear enough (s 60CC(2)(a)). He has that already, and I have no doubt it will continue. Section 60CC(2)(b) – relates to the risk of harm and the protection of children from identified harm. This section is not relevant in this case. The mother does seek an order that X not be brought into contact with Mr B. Mr B is the previous partner of the mother. Indeed, he is the father of the child Y. Pursuant to family law orders made by her Honour Judge Spelleken, Y lives primarily with her mother and otherwise lives five nights a fortnight with her father, Mr B. Those orders were made by her Honour, I apprehend from the evidence here, after a trial, there having been, so I am told, no consent position. The evidence in this case shows that about once a month the father spends time with Mr B. It seems they are friends, and it seems that the father’s view is that there is no harm in X coming into contact with Mr B, and the father, I infer from his evidence, on occasions makes arrangements with Mr B so that when X is with the father, he and the father might catch up and have dinner, for instance, with Mr B and the child Y. I accept the father’s evidence in that regard, and whilst it may be the case that historically, there may have been some sound reasoning for keeping Mr B away from X, the issues, whatever they may have been in the past, appear to have disappeared over time. I note the father’s evidence that he and X spend time with Mr B and Y, and from the father’s evidence, which I accept, I infer that this goes well and it means the siblings, X and Y, get to spend that bit of extra time together when they are both in the care of their respective fathers. To the extent there may have been risk issues in the past relating to Mr B, the view that I have formed is any such issues have long since receded, and I do not need to make any specific findings about those allegations, such as they are. Noting that I have heard and accept the father’s evidence today, I am not concerned with young X being brought into contact with Mr B and the mother’s proposed order paragraph number 28 is not, in my view, in the best interests of the child X and ought not be made. I note that the ICL supports the father’s position in that regard. In case it were not abundantly clear already, I have had regard to the mother’s trial affidavit filed 19 January 2023 in relation to those issues. I am not certain, but it may be the case that there was – or is - another order in existence in relation to X and Mr B being kept apart, but it was not brought to my attention, certainly not in submissions, but, in any event, if such an order exists, so be it. I am not concerned about the issue, certainly not concerned enough to make an order in terms of paragraph 28 as proposed by the mother. The reality is that a judge of Division 2 of this Court has decided that the child Y should spend five nights a fortnight with her father, Mr B. My attention has not been drawn to any evidence that would be of sufficient concern to this Court to take the move urged on behalf of the mother and outlined in paragraph 28 of her proposed order. I am not prepared to do it. I will not make that order. It is not in X’s best interests. I accept the evidence of the father in relation to that issue.