Tome & Tome

Case [2021] FamCA 589

FAMILY COURT OF AUSTRALIA

Tome & Tome [2021] FamCA 589  

File number(s): PAC 842 of 2018
Judgment of: FOSTER J
Date of judgment: 11 August 2021
Catchwords: FAMILY LAW – PARENTING – Where clear evidence of family violence perpetrated by the father – where father acknowledges same – where violence relationship based – where no assertion of violence in the years since separation – where the father has engaged in appropriate therapeutic intervention – where mother exhibits significant anxiety in relation to the father and the paternal family – where mother makes assertion that paternal grandfather sexually abused the eldest child – where finding as to no unacceptable risk – where issue as to equal shared parental responsibility – where in best interests of children for such order to be made – where father has had professionally supervised time for some years – where such supervision should cease – where appropriate for father’s time with children to be extended gradually initially in presence of paternal grandmother – where significant issue as to use of alternate name for the eldest child by the mother – where mother wilfully disobeyed court orders prohibiting such use – where in best interests of child to permit continued use of name – where orders made substantially as sought by the Independent Children’s Lawyer – where orders made for written submissions as to Independent Children’s Lawyer costs.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZQ, 69ZR, 69ZX
Cases cited:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Goode and Goode (2006) FLC 93-286
Hakimi & Nasser (No. 2) [2021] FamCAFC 88
Johnson v Johnson (2000) 201 CLR 488 (7 September 2000)
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Spencer & Spencer (No. 2) [2020] FamCAFC 108
Tong & Niem [2020] FamCAFC 27

Vallans & Vallans [2019] FamCAFC 260

Number of paragraphs: 131
Date of last submission/s: 19 July 2021
Date of hearing: 21, 22, 23, 24 and 25 June 2021
Place: Parramatta
Counsel for the Applicant: Mr Kearney SC
Solicitor for the Applicant: Lamrocks Solicitors
Solicitor for the Respondent: Genuine Legal
Counsel for the Independent Children's Lawyer: Ms Shea
Solicitor for the Independent Children's Lawyer: Ms Laurence of Legal Aid NSW

ORDERS

PAC 842 of 2018
BETWEEN:

MR TOME

Applicant
AND:

MS TOME

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

11 AUGUST 2021

THE COURT ORDERS THAT:

1.All previous parenting orders in relation to the children, X, born … 2016, and Y, born … 2017 (“the children”), be discharged.

2.The mother and father have equal shared parental responsibility for the children.

3.The children live with the mother.

4.The children spend time with the father as follows:

(a)From the date of these Orders until 1 June 2022:

(i)With both children each Sunday from 10 am to 6.30 pm;

(ii)With Y each Friday from 10 am to 6.30 pm;

(iii)With X each Friday from after school…

Continue reading Tome & Tome

Sign in free to access the full text

Details
AGLC
Tome & Tome [2021] FamCA 589
Case
[2021] FamCA 589
Decision Date

CaseChat Overview and Summary

This case concerned parenting orders between Mr. Tome (the applicant father) and Ms. Tome (the respondent mother) regarding their two children, X and Y. The dispute involved allegations of family violence by the father, the mother's significant anxiety, and a contentious issue regarding the use of a particular forename for the eldest child. An Independent Children's Lawyer (ICL) was appointed to represent the children's interests.

The court was required to determine several key issues. Firstly, it needed to assess whether equal shared parental responsibility was in the best interests of the children, given the history of family violence and the mother's concerns. Secondly, the court had to consider the appropriate arrangements for the children's time with the father, including the cessation of professional supervision and the gradual extension of contact. Thirdly, the court was tasked with resolving the dispute over the use of an alternate forename for the eldest child, and whether the mother's wilful disobedience of previous orders prohibiting its use should be overridden.

In its reasoning, the court found that the father had taken appropriate steps to address his past behaviour, evidenced by his frank admissions, engagement in therapy, and the absence of violence since separation. The court considered the additional factors under section 60CC(3) of the *Family Law Act 1975*, including the children's relationships with both parents and other family members, and the father's capacity to provide for the children's needs. The court determined that equal shared parental responsibility was in the children's best interests, and that their time with the father should be extended gradually, initially with the presence of the paternal grandmother. Regarding the use of the alternate forename, the court concluded that permitting its continued use was in the children's best interests, despite the mother's wilful disobedience of prior orders.

The court made orders discharging previous parenting orders and establishing equal shared parental responsibility, with the children to live with the mother. The father's time with the children was to be extended gradually, commencing with supervised time by the paternal grandmother and progressing to unsupervised time. The court also made specific orders regarding the use of forenames for the eldest child, allowing both parents to use their preferred forenames and restraining them from correcting the children in relation to their name usage. Orders were also made for written submissions concerning the costs of the Independent Children's Lawyer.

Orders

Orders of the court

PAC 842 of 2018

BETWEEN:

MR TOME

Applicant

AND:

MS TOME

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

11 AUGUST 2021

THE COURT ORDERS THAT:

1. All previous parenting orders in relation to the children, X, born … 2016, and Y, born … 2017 (“the children”), be discharged.

2. The mother and father have equal shared parental responsibility for the children.

3. The children live with the mother.

4. The children spend time with the father as follows:

(a) From the date of these Orders until 1 June 2022:

(i) With both children each Sunday from 10 am to 6.30 pm;

(ii) With Y each Friday from 10 am to 6.30 pm;

(iii) With X each Friday from after school until 6.30 pm, except during school holidays when time will commence at 10 am; and

(iv) Such time to occur in the presence of the paternal grandmother.

(b) From 2 June 2022 until … 2022 (when Y turns five):

(i) With both children each Sunday from 10 am to 6.30 pm;

(ii) With Y each Friday from 10 am to 6.30 pm; and

(iii) With X each Friday from after school until 6.30 pm, except during school holidays when time will commence at 10 am.

(c) From … 2022 (when Y turns five) until the commencement of Term 1 2023 (when Y starts school):

(i) With both children each week from 10 am Sunday until the commencement of school/pre-school on Monday;

(ii) With Y each Friday from 10 am to 6.30 pm (7.30 pm Daylight saving time); and

(iii) With X each Friday from after school until 6.30 pm (7.30 pm Daylight saving time) except during school holidays when time will commence at 10 am.

(d) From the commencement of Term 1, 2023 (when Y starts school) until the conclusion of Term 4 2023:

(i) With both children each alternate weekend from 10 am Saturday if the children are not attending Arabic school (or otherwise from the conclusion of Arabic school) until the commencement of school on Monday commencing on the first weekend of school term; and

(ii) With both children from after school until 6.30 pm (7.30 pm Daylight saving time) on Friday in the other week, except during school holidays when time will commence at 10 am on Friday.

(e) From the commencement of Term 4, 2023 until the commencement of Term 1, 2024:

(i) During school terms:

A. With both children on each alternate weekend from after school on Friday until before school on Monday commencing on the first weekend of school term; and

B. With both children from after school until 6.30 pm (7.30 pm Daylight saving time) on Friday in the other week.

(ii) During school holidays:

A. With both children for a period of four consecutive nights as agreed in writing between the parties and failing agreement from 10 am Friday until 6.30 pm (7.30 pm Daylight saving time) Tuesday on the weekend the children would usually be with the father.

(f) From the commencement of Term 1, 2024:

(i) With both children during school terms, in each alternate week from after school on Friday until before school on Tuesday;

(ii) With both children for one half of each school holiday period as agreed provided that the time in the December/January holidays shall occur on a week-about basis unless otherwise agreed in writing between the parties and in default of agreement the first half of the midyear school holiday periods commencing on the first day of such period and otherwise commencing on the second week of the December/January holidays and each alternate week thereafter;

(iii) And at such other times as agreed in writing between the parties such writing to include SMS or email communication provided always that both the mother and father are at liberty to attend on occasions significant to the welfare of the children including their education, religious education, sport and extracurricular activities provided that both shall be at all times respectful and courteous to each other.

5. That, in relation to the child, X, the father be at liberty to use the forename “X” and the mother be at liberty to use the forename “H” to refer to the child and both parents be and hereby are restrained from correcting, chastising or criticising either of the children in relation to their use of either name, and both parents shall use their best endeavours to ensure that no third party corrects, chastises or criticises either of the children in relation to their use of either name.

6. That the father be and hereby is restrained from allowing either of the children to spend time in the presence of the paternal grandfather unless such time is substantially in the presence of the father, the paternal grandmother or other adult over the age of 18 years.

7. That for the purpose of changeovers other than at school, unless otherwise specified in these orders, changeovers shall be effected as agreed in writing by the mother and father and in default of agreement shall be effected at the McDonald’s Family Restaurant, corner of J Street and K Street, Suburb E with the mother or her nominee to deliver the child or children, as the case may be, to the father or his nominee at the McDonald’s Family Restaurant and the father or his nominee shall return the child or children to the mother or her nominee at the McDonald’s Family Restaurant at the conclusion of time with the children.

8. That absent agreement as to the costs sought by the Independent Children’s Lawyer (“ICL”) each of the parties file and serve written submissions within 14 days from this date with judgment thereafter reserved to chambers provided always that in the event of agreement the ICL is at liberty to forward to the Court in chambers a minute of proposed consent orders to be made in chambers.

9. Pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.

10. The matter be removed from the active pending cases list.

11. All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The Court’s powers and duties are the subject of s 69ZX of the Act:Court's general duties and powers relating to evidence(1) In giving effect to the principles in section 69ZN, the court may:(a)give directions or make orders about the matters in relation to which the parties are to present evidence; and(b)give directions or make orders about who is to give evidence in relation to each remaining issue; and(c)give directions or make orders about how particular evidence is to be given; and(d)if the court considers that expert evidence is required--give directions or make orders about:(i)the matters in relation to which an expert is to provide evidence; and(ii)the number of experts who may provide evidence in relation to a matter; and(iii) how an expert is to provide the expert's evidence; and(e)ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.(2)Without limiting subsection (1) or section 69ZR, the court may give directions or make orders:(a) about the use of written submissions; or(b) about the length of written submissions; or(c) limiting the time for oral argument; or(d) limiting the time for the giving of evidence; or(e) that particular evidence is to be given orally; or(f) that particular evidence is to be given by affidavit; or(g)that evidence in relation to a particular matter not be presented by a party; or(h) that evidence of a particular kind not be presented by a party; or(i) limiting, or not allowing, cross-examination of a particular witness; or(j)limiting the number of witnesses who are to give evidence in the proceedings. Section 69ZX gives the Court wide powers in the context of contested parenting proceedings to, as it were, get to the nub of the matter. In Johnson v Johnson (2000) 201 CLR 488 (7 September 2000) the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said:11.... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. 12.That test has been adopted, in preference to a differently expressed test that has been applied in England, for the reason that it gives due recognition to the fundamental principle that justice must both be done, and be seen to be done. It is based upon the need for public confidence in the administration of justice. “If fair-minded people reasonably apprehend or suspect that the tribunal has prejudged the case, they cannot have confidence in the decision”. The hypothetical reasonable observer of the judge’s conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”. 13.Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The evidence supports the conclusion that the father has taken positive and appropriate steps to address his behaviour. His evidence was frank, concessional and thoughtful on this issue. He was in that regard supported by the single expert and his treating psychologist Ms V. There have been no incidents of violence since separation in October 2017. The father's acceptance of his aberrant conduct, his respectful dealings with A Family Services, his behaviour during supervised time and the children's strong relationship with him provide ample evidence that the children will benefit from their continuing relationship with him.The additional considerations: s 60CC(3) Section 60CC(3) sets out the additional considerations:a)Any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;b) The nature of the relationship of the child with: i) Each of the child's parents; andii)Other persons (including any grandparent or other relative of the child);c)The extent to which each of the child's parents has taken, or failed to take, the opportunity: i)To participate in making decisions about major long-term issues in relation to the child; and ii) To spend time with the child; and iii) To communicate with the child;ca)The extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; d)The likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from: i) Either of his or her parents; or ii)Any other child, or other person (including any grandparent or other relative of the child); with whom he or she has been living;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;f) The capacity of: i) Each of the child's parents; and ii) Any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant; h) If the child is an Aboriginal child or a Torres Strait Islander child: i)The child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and ii)The likely impact any proposed parenting order under this Part will have on that right; i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents; j) Any family violence involving the child or a member of the child's family;k)If a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following: i) The nature of the order; ii) The circumstances in which the order was made; (iii) Any evidence admitted in proceedings for the order; (iv) Any findings made by the court in, or in proceedings for, the order; (v) Any other relevant matter; l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; andm) Any other fact or circumstance that the court thinks is relevant.