FEDERAL CIRCUIT COURT OF AUSTRALIA
| TOMOV & TRESLER | [2017] FCCA 884 |
| Catchwords: FAMILY LAW – Parenting – parental responsibility – living arrangements – allegations of family violence – alcohol abuse – mental health issues. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 60B, 60CA, 60CC, 61DA, 61DB, 65DAC |
| Cases cited: A & A (1998) FLC 92-800 |
| Applicant: | MR TOMOV |
| Respondent: | MS TRESLER |
| File Number: | HBC 661 of 2013 |
| Judgment of: | Judge Baker |
| Hearing date: | 21 April 2017 |
| Date of Last Submission: | 21 April 2017 |
| Delivered at: | Hobart |
| Delivered on: | 5 May 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trezise |
| Solicitors for the Applicant: | Dobson Mitchell & Allport |
| The Respondent: | Ms Tresler in person |
| Counsel for the Independent Children’s Lawyer: | Ms Ryan |
ORDERS
Parental Responsibility
The father, MR TOMOV, have sole parental responsibility for the child [X] born (omitted) 2012 (“[X]”).
In the exercise of his sole parental responsibility the father will do the following:-
(a)Provide the mother with written notice by registered mail (“the notice”) of any proposal with respect to [X]’s education, significant health issues and/or welfare, along with the basis for the proposal as soon as practicable and if the communication relates to [X]’s high school enrolment that notice will be provided no later than the end of [X]'s Grade 5 year;
(b)If the mother does not agree with the father’s proposal, conditionally agrees with the father’s proposal, or does not reply to the notice, the father will invite the mother to a family dispute resolution conference at a community organisation to attempt to resolve the issue; and
(c)If after a family dispute resolution conference there is no agreement or only partial agreement the father can then proceed to make his decision, action it and notify the mother of this by registered mail.
Live With and Communication
Commencing 4 May 2017, [X] live with the father for a block of six (6) consecutive nights per fortnight from after school Thursday (or 3:00 p.m. if not attending school that day) to commencement of school Wednesday (or 9:00 a.m. if not attending school that day).
Commencing 10 May 2017 [X] live with the mother for eight (8) consecutive nights a fortnight from commencement of school Wednesday (or 10:00 a.m. if not attending school that day) to after school Thursday (or 3:00 pm if not attending school that day).
[X] may communicate with the parent she is not staying with that night, by telephone or other electronic method, such as Facetime or email, on the fourth night of [X]’s contact block time in either parent’s home, at 6:30 p.m. when [X] is in the father’s care or 6:00 p.m. when [X] is in her mother’s care, and additionally at times [X] asks to speak to her other parent, provided the hour is reasonable.
Once in any calendar year each parent is permitted to extend their fortnightly time…
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- Tomov and Tresler [2017] FCCA 884
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CaseChat Overview and Summary
The legal issues before the court included the allocation of parental responsibility, the specific schedule for when the child would live with each parent, provisions for communication between the child and the non-resident parent, arrangements for special days and holidays, and the process for changeovers. The court also had to consider orders relating to the child's education, including enrolment at a specific school, and various injunctions and responsibilities designed to protect the child's welfare, including restrictions on substance use, requirements for the mother's mental health treatment, and prohibitions against negative comments about the other parent.
The court ordered that the father have sole parental responsibility for the child, outlining a process for the father to propose decisions regarding the child's education, health, and welfare, and requiring him to engage in family dispute resolution if the mother disagreed. Specific living arrangements were established, detailing a fortnightly schedule where the child would live with the father for six nights and the mother for eight nights. Provisions were made for communication, school holidays, and the division of special days and holidays, including Christmas and birthdays, with alternating arrangements for certain periods. The court also imposed injunctions on both parents regarding substance use and on the mother concerning alcohol consumption. Furthermore, the mother was ordered to continue engaging with mental health professionals and follow their recommendations. The court also made orders to prevent either parent from speaking negatively about the other to the child and to ensure the child's exposure to family violence was prevented.
Orders
Orders of the court
Parental Responsibility
1.
The father, MR TOMOV, have sole parental responsibility for the child [X] born (omitted) 2012 (“[X]”).
2.
In the exercise of his sole parental responsibility the father will do the following:-
(a) Provide the mother with written notice by registered mail (“the notice”) of any proposal with respect to [X]’s education, significant health issues and/or welfare, along with the basis for the proposal as soon as practicable and if the communication relates to [X]’s high school enrolment that notice will be provided no later than the end of [X]'s Grade 5 year;
(b) If the mother does not agree with the father’s proposal, conditionally agrees with the father’s proposal, or does not reply to the notice, the father will invite the mother to a family dispute resolution conference at a community organisation to attempt to resolve the issue; and
(c) If after a family dispute resolution conference there is no agreement or only partial agreement the father can then proceed to make his decision, action it and notify the mother of this by registered mail.
Live With and Communication
3.
Commencing 4 May 2017, [X] live with the father for a block of six (6) consecutive nights per fortnight from after school Thursday (or 3:00 p.m. if not attending school that day) to commencement of school Wednesday (or 9:00 a.m. if not attending school that day).
4.
Commencing 10 May 2017 [X] live with the mother for eight (8) consecutive nights a fortnight from commencement of school Wednesday (or 10:00 a.m. if not attending school that day) to after school Thursday (or 3:00 pm if not attending school that day).
5.
[X] may communicate with the parent she is not staying with that night, by telephone or other electronic method, such as Facetime or email, on the fourth night of [X]’s contact block time in either parent’s home, at 6:30 p.m. when [X] is in the father’s care or 6:00 p.m. when [X] is in her mother’s care, and additionally at times [X] asks to speak to her other parent, provided the hour is reasonable.
6.
Once in any calendar year each parent is permitted to extend their fortnightly time with [X] during a school holiday period, to create block of not greater than 10 nights (unless agreed otherwise in writing), provided they give the other party not less than 12 weeks written notice and provide make-up time in the next school holiday period equivalent to the number of nights forgone by the other parent.
7.
Such further alternate time with either parent as agreed in writing between them.
Special Days & Holidays
8.
The live with orders pursuant to Orders 3-7 above will be suspended on the following special days and instead [X] will spend time with her respective parents as provided for below:-
(a) On the father’s birthday (26 July), if it falls on a Monday to Thursday during the school term, [X] will spend time with her father from after school on the day of the father’s birthday to commencement of school after the father’s birthday.
And the Court notes the mother’s birthday is 23 December and therefore incorporated into Christmas time with the mother in odd numbered years.
(b) On Father's Day [X] will spend time with her father from after school (or 3:00 p.m. if not attending school that day) on the Friday of the weekend Father’s Day falls on to commencement of school (or 9:00 a.m. if not attending school that day);
(c) On Mother's Day [X] will spend time with her mother from after school (or 3:00 p.m. if not attending school that day) on the Friday of the weekend Mother’s Day falls on to the commencement of school (or 9:00 a.m. if not attending school that day) Monday;
(d) For Christmas:
i) [X] will spend time with her father:
(i) in even numbered years from 4:00 p.m. Christmas Eve to 10:00 a.m. Boxing Day;
(ii) in odd numbered years from 10:00 a.m. Boxing Day to 4:00 p.m. 28 December;
ii) [X] will spend time with her mother:
(iii) in even numbered years from 10:00 a.m. Boxing Day to 4:00 p.m. 28 December;
(iv) in odd numbered years 10:00 a.m. 22 December to 10:00 a.m. Boxing Day;
9.
Both parties are at liberty to attend [X]’s school and extra-curricular engagements, such as, but not limited to assemblies, sports training, sports games, carnivals, fairs, concerts awards nights and the like.
Changeover
10.
Changeover shall occur as follows:-
(a) If changeover falls on a day [X] attends school, changeover will be at school;
(b) If changeover falls on a day [X] does not attend school changeover will be held at the (omitted contact service) at 3:00 p.m. if the service is able to facilitate the changeover.
(c) If changeover would otherwise be held at the (omitted contact service), but the (omitted contact service), cannot facilitate changeover, it will then be held at the (omitted) Police Station or such other venue as the parties agree in writing at 3:00 p.m.
(d) A third-party agent sent by one of the parties may collect or deliver [X] to changeover AND if that is to happen [X]’s school/childcare are to receive the appropriate authority from the parent who would otherwise have collected or delivered [X].
(e) If changeovers are to be held at the (omitted contact service) all changeovers will occur at times as close to those provided for in these Orders as the (omitted contact service) can facilitate.
[X]'s School Enrolment
11.
Unless a court with competent jurisdiction orders or unless agreed otherwise in writing between the parents [X] will remain enrolled at [School A] until she commences high school and neither parent will enrol her in any other primary school.
12.
Within seven (7) days of the date of these Orders the Independent Children’s Lawyer will provide the principal of [School A] with a copy of these Orders and the father will provide a copy of these Orders to any other school at which [X] is enrolled.
Injunctions and Responsibilities
13.
Both parties are hereby restrained from consuming illicit substances while [X] is in their care and during the twelve (12) hours prior to [X] coming into their care.
14.
The mother is restrained from consuming alcohol in the twelve (12) hours prior to [X] coming into her care and while [X] is in her care.
15.
In order to appropriately address and manage her mental health issues, the mother is to continue to engage with her medical and mental health professionals and follow their reasonable recommendations with respect to treatment, including medication, and the frequency of her attendances on those professionals. It is noted that the mother has agreed to the recommendations made by Mr D which include:
(i) Continuation of meaningful contact and engagement with the (omitted Mental Health Service).
(ii) Participation in psychological therapy to assist her with aspects of personality disorder.
(iii) Cognitive behavioural therapy regarding her perceptions of the father’s behaviours.
(iv) Contact with a service providing rehabilitation, counselling and education in relation to her use of alcohol.
16.
In the event the mother is unable to care for [X] due to health issues, [X] will live with the father or, if the father is not available, the paternal grandmother.
17.
T.F. and Mother are each restrained from:
(a) abusing, insulting, belittling, rebuking, or otherwise speaking negatively, rudely or critically about the other parent to [X], in the presence of [X] or within [X]’s hearing and nor will they permit any other person to do so;
(b) discussing these proceedings or any future dispute between them in the presence or hearing of [X] or permitting any other person to do so;
(c) subjecting or exposing [X] to any form of family violence.
18.
The parties will promptly inform each other of any serious illness/injury or threat of the same suffered or sustained by [X] whilst in their respective care.
19.
Unless it is an emergency, the parties will only take [X] to (location omitted) Family Practice to consult a general medical practitioner, unless otherwise agreed in writing.
20.
Within seven (7) days of the date of these Orders the Independent Children’s Lawyer will provide (omitted Mental Health Service) with a copy of these Orders and the single expert reports of Mr D released 23 February 2016 and 10 April 2017.
21.
The parties are at liberty to provide their respective present or future health professionals or any health professionals consulted by [X] with a copy of the single expert reports of Mr D released 23 February 2016 and 10 April 2017.
22.
Each party shall do all such things and sign all such documents as may be necessary or required to:
(a) Authorise each parent to communicate with, and receive communication from, any doctor or health professional of whatever type, [X] attends on or consults, failing which this order shall, of itself, constitute such authority;
(b) To speak to, and receive oral or written communication from, any school/other educational institution attended by [X], failing which this order shall, of itself, constitute such authority;
(c) Tell the other parent their new residential address and telephone contact number within seven (7) days of any change to these; and
(d) Notify the other parent should [X] suffer any medical emergency, serious illness, or other significant issue affecting [X]’s health or welfare, whilst in their care within a reasonable time of the event.
THE COURT NOTES THAT:
A. Pursuant to ss.65DA(2) and 62B 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 A.A. 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
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Ratio Decidendi
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