FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tomkins & Milliken (No 2) [2025] FedCFamC2F 280
File number(s): MLC 2392 of 2023 Judgment of: JUDGE HARLAND Date of judgment: 7 March 2025 Catchwords: FAMILY LAW - Parenting only – family violence – coercive control – issues of risk in relation to the mother’s alleged prescription and illicit drug misuse – father’s application for change of residence –family report ordered part way through the final hearing – whether the mother poses an unacceptable risk to the children –– mother’s positive hair follicle tests for cocaine and methamphetamine – parenting capacity – father’s ability to promote the children’s relationship with the mother – whether or not there should be a change of residence – impact on the children of the orders sought by the father and the independent children’s lawyer – consideration of conditional orders. Legislation: Family Law Act 1975 (Cth) ss.4AB, 60B, 60CA, 60CC(2), 60CC(3), 65D, 65DA, 60G
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15(3)
Cases cited: Carter & Wilson (2023) FedCFamC1A 9; (2023) FLC 94-129
Isles & Nelissen [2022] FedCFamC1A 97
Lainhart & Ellinson [2023] FedCFamC1A 200
Miyajima & Mikkelsen [2024] FedCFamC1A 208
Oberlin & Infeld [2021] FamCAFC 66
Oswald & Karrington (2016) FLC 93-726
Pickford & Pickford [2024] FedCFamC1A 249
Division: Division 2 Family Law Number of paragraphs: 224 Date of last submission/s: 18 December 2024 Date of hearing: 6, 7, 8, 9, 10 May 2024,14 June 2024 and 10 October 2024 Place: Melbourne Counsel for the Applicant Ms Isaacson Solicitors for the Applicant Barbayannis Lawyers Counsel for the Respondent Mr Strong Solicitors for the Respondent Tfa Legal Counsel for the Independent Children’s Lawyer Dr Alexander Solicitors for the Independent Children’s Lawyer Victoria Legal Aid ORDERS
MLC 2392 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TOMKINS
Applicant
AND: MS MILLIKEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS, BY CONSENT, THAT:
1.All previous parenting orders are discharged.
2.The parties have joint decision-making responsibility in relation to all major decisions for the two children X born in 2019 and Y born in 2021.
THE COURT FURTHER ORDERS THAT:
3.The children live with the mother.
4.The children spend time and communicate with the father as follows:
(a)In week 1
(i)From the conclusion of childcare/kindergarten/school or 5:00pm on a non-childcare/kindergarten/school day on Wednesday until the commencement of childcare/kindergarten/school or 9:00am on Thursday; and
(ii)From 5:00pm on Friday until the commencement of childcare/kindergarten/school on Monday or 9:00am if a non-childcare/kindergarten/school day;
(b)In week 2, from the conclusion of childcare/kindergarten or 5:00pm on a non-childcare/kindergarten/school day on Wednesday until the commencement of childcare/kindergarten/school or 9:00am on Thursday; and
(c)By facetime each Tuesday and Thursday between 5:00pm and 5:30pm and other times as agreed between the parties in writing.
5.When the children are in the father’s care, the mother communicate with the children by facetime Friday and Sunday between 5:00pm and…
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CaseChat Overview and Summary
The Court heard evidence, including a family report ordered part way through the final hearing, and found that the mother had tested positive for cocaine and methamphetamine. Despite this, the Court determined that the children should remain with the mother, with specific visitation rights for the father. The Court also imposed conditions on the mother to ensure the children's safety, including restrictions on her use of illicit substances and contact with certain individuals. Additionally, the Court mandated that both parents refrain from negatively discussing each other in front of the children and from exposing the children to the details of the proceedings. The final orders outlined specific arrangements for the children's time with each parent, including during school holidays and special occasions.
The Court dismissed all other pending applications and directed that the Independent Children's Lawyer be discharged. The orders also included provisions for communication between the children and their non-resident parent, as well as specific instructions for changeovers and the disclosure of certain documents to relevant professionals.
Orders
Orders of the court
MLC 2392 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR TOMKINS
Applicant
AND:
MS MILLIKEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS, BY CONSENT, THAT:
1. All previous parenting orders are discharged.
2. The parties have joint decision-making responsibility in relation to all major decisions for the two children X born in 2019 and Y born in 2021.
THE COURT FURTHER ORDERS THAT:
3. The children live with the mother.
4. The children spend time and communicate with the father as follows:
(a) In week 1
(i) From the conclusion of childcare/kindergarten/school or 5:00pm on a non-childcare/kindergarten/school day on Wednesday until the commencement of childcare/kindergarten/school or 9:00am on Thursday; and
(ii) From 5:00pm on Friday until the commencement of childcare/kindergarten/school on Monday or 9:00am if a non-childcare/kindergarten/school day;
(b) In week 2, from the conclusion of childcare/kindergarten or 5:00pm on a non-childcare/kindergarten/school day on Wednesday until the commencement of childcare/kindergarten/school or 9:00am on Thursday; and
(c) By facetime each Tuesday and Thursday between 5:00pm and 5:30pm and other times as agreed between the parties in writing.
5. When the children are in the father’s care, the mother communicate with the children by facetime Friday and Sunday between 5:00pm and 5:30pm and other times as agreed between the parties in writing.
6. The parties are to facilitate facetime and/or telephone calls between the children and the other parent the children are currently not spending time with at all reasonable times at the request of the children.
7. For the purposes of the school holiday periods orders 4 and 5 are suspended and the children spend time with the parties as follows:
(a) For the Term holiday periods in even numbered years with the mother for the first week and with the father for the second week and in odd numbered years with the father for the first week and with the mother for the second week;
(b) For the long summer holiday periods on a week about basis;
(i) With the mother for the first week and each alternate week thereafter in those holiday periods commencing in even numbered years and with the father for the second week and each alternate week thereafter; and
(ii) With the father for the first week and each alternate week thereafter in those holiday periods commencing in odd numbered years and with the mother for the second week and each alternate week thereafter.
(c) The non-resident parent communicate with the children via facetime/video call each Tuesday and Thursday when the children are not in that parent’s respective care between 5.00pm and 5.30pm.
8. For the purposes of the school holiday periods:
(a) The school holiday period is to commence after childcare/kindergarten/school (or 3:30pm if a non-childcare/kindergarten/school day) on the last day of the term;
(b) The first half of the term holiday period is deemed to conclude at 5:00pm on the day which is halfway through the relevant school holiday period, and in the event that there are an odd number of days in the school holiday period the Mother is to have the additional day in even numbered years and the Father is to have the additional day in odd numbered years;
(c) Each week of the long summer holiday period is deemed to conclude at 5:00pm, seven (7) nights after the commencement of the relevant week;
(d) The school holiday period is deemed to conclude before childcare/kindergarten/school (or 9:00am if a non-childcare/ kindergarten/school day) on the first Victorian gazetted day of the new term after the holiday period.
9. For the purposes of Orders 4, 5 and 7, the usual spend time arrangements are suspended and the children spend time with the parents as follows:
(a) On Mother’s Day from 5:00 p.m. on the evening before Mother’s Day until 5:00pm on Mother’s Day with the mother;
(b) On Father’s Day from 5:00pm on the evening before Father’s Day until 5:00pm on Father’s Day with the father;
(c) On each of the children’s birthdays, in the event that such a day falls on a day when the children are not spending time with both parents, then with the other parent as follows:
(i) If on a school/kindergarten/childcare day, from the conclusion of school/kindergarten/childcare or 3:30pm until 6:30pm;
(ii) If on a non- school/kindergarten/childcare day, from 9:00am until 2:00pm.
(d) On the mother’s birthday, in the event that such a day falls on a day when the children are not spending time with the mother, then with the mother:
(i) If on a school/kindergarten/childcare day, from the conclusion of school/kindergarten/childcare or 3:30pm until 7:30pm;
(ii) If on a non- school/kindergarten/childcare day, from 9:00 am until 5:00pm;
(e) On the Father’s birthday, in the event that such a day falls on a day when the children are not spending time with the father, then with the father:
(i) If on a school/kindergarten/childcare day, from the conclusion of school/kindergarten/childcare or 3:30pm until 7:30pm;
(ii) If on a non- school/kindergarten/childcare day, from 9:00 am until 5:00pm
(f) For Christmas as follows:
(i) In 2025 and each odd numbered year thereafter, with the mother from 5:00pm on Christmas Eve until 5:00pm on Christmas Day and with the father from 5:00pm on Christmas Day until 5:00pm on Boxing Day; and
(ii) In 2024 and each even numbered thereafter with the father from 5:00pm on Christmas Eve until 5:00 p.m. on Christmas Day and with the mother from 5:00 p.m. on Christmas Day until 5:00p.m. on Boxing Day.
10. Where changeovers do not occur at childcare/kindergarten or school and unless otherwise agreed in writing between the parties, the parties shall facilitate changeover at McDonalds, Suburb H.
11. The mother has leave to provide any treating alcohol and drug counsellor with:
(a) A copy of Dr B’s Reports dated 3 April 2024 and 7 November 2024;
(b) A copy of the four completed hair follicle test results dated August 2023, October 2023, May 2024 and October 2024;
(c) A copy of these Orders; and
(d) A copy of these reasons.
12. Both parties have leave to provide the family report by Ms D dated 26 August 2024, Dr C’s report dated 24 August 2023 and these reasons to any therapist they engage with.
THE COURT DIRECTS THAT:
13. The Independent Children’s Lawyer is discharged 30 days from the date of these Orders.
THE COURT FURTHER ORDERS THAT:
14. The mother be restrained from:
(a) using any illicit substances when the children are in her care;
(b) allowing any other person to use illicit drugs in the presence of the children or in the mother’s presence whilst the children are in her care; and
(c) bringing the children into contact with ‘Mr E’ or any other members of an outlaw motorcycle gang including but not limited to F Club.
15. That each party be restrained by themselves, their agents and servants from:
(a) criticising, belittling or otherwise denigrating the other parent in the presence and/or within hearing of the children or either of them; and
(b) discussing any allegations made or material filed in these proceedings in the presence or withing hearing of the children or either of them and from showing any such material to the children.
16. All extant applications are dismissed.
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.
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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