FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tonkin & Rojas [2024] FedCFamC2F 358
File number(s): HBC 524 of 2022 Judgment of: JUDGE TAGLIERI Date of judgment: 22 March 2024 Catchwords: FAMILY LAW – parenting – final orders – parental responsibility – impact of father’s mental health and alcohol use disorder – order for sole parental responsibility disputed – parties agree that children should live with mother – orders for one of the two children to spend time and communicate with father and otherwise in accordance with her wishes – negative alcohol detection test result required by father prior to time with child – practical barriers to in person time due to location of parties residences.
FAMILY LAW – property – final orders – disputed ownership of liabilities – alleged negative contributions argument – greater parenting contributions by mother – initial financial contribution by mother not matched – 71/29 adjustment of net non-superannuation assets and superannuation in favour of the mother.
Legislation: Family Law Act 1975 (Cth) Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Benson & Drury [2020] FamCAFC 303
Bevan & Bevan (2014) FLC 93-592
Bulow & Bulow [2019] FamCAFC 3
Chapman & Chapman [2014] FamCAFC 91
Ferraro & Ferraro [2010] FamCA 142
Goode & Goode [2006] FamCA 1346
Harris v Caladine [1991] HCA 9; 172 CLR 84
In the Marriage of Hickey (2003) 30 Fam LR 355
Isles & Nellisen [2022] FedCFamC1A 97
Jabour & Jabour [2019] FamCAFC 78
Kowaliw & Kowaliw [1981] FamCA 70
Krotofil & Krotofil (1980) FLC 90-909
MRR & GR [2010] HCA 4
Polonius & York [2010] FamCAFC 228
Sebastian & Sebastian (No.5) [2013] FamCA 191
Slater & Light [2011] FamCAFC 1
Stanford and Stanford [2012] HCA 52
Wagstaff and Wagstaff [2018] FCCA 927
Division: Division 2 Family Law Number of paragraphs: 170 Date of last submission/s: 17 November 2023 Date of hearing: 13-15 November 2023 Place: Hobart Counsel for the Applicant: Mr Flanagan Solicitors for the Applicant: Murdoch Clarke Counsel for the Respondent: Mr Mead Solicitors for the Respondent: Mead Family Law The Independent Children's Lawyer: Ms Jacobs, Jacobs Family Law ORDERS
HBC 524 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TONKIN
Applicant
AND: MR ROJAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
Parenting
1.The parenting Orders made by the Federal Circuit and Family Court of Australia in City B on 4 May 2022 be discharged.
Parental responsibility
2.The Mother have sole parental responsibility for X, born 2012, and Y, born 2015 (collectively “the children”).
3.The Mother must message the Father by the Our Family Wizard app of any decisions that she intends to make that concern ‘major long-term issues’ at least twenty eight (28) days prior to those decisions being made, major long-term issues being issues of a long term nature about:
(a)either of the children’s education (both current and future); and
(b)either of the children’s religious and cultural upbringing; and
Continue reading Tonkin & Rojas
Sign in free to access the full text
- AGLC
- Tonkin & Rojas [2024] FedCFamC2F 358
- Case
- [2024] FedCFamC2F 358
- Decision Date
CaseChat Overview and Summary
The court was required to decide several key legal issues, including the allocation of parental responsibility, the appropriateness of sole parental responsibility for the mother, and the conditions under which the father could exercise his parental responsibilities. Additionally, the court had to address the practical challenges of implementing visitation and communication schedules due to the geographical distance between the parties' residences. The court also needed to resolve the financial disputes, particularly regarding the division of liabilities and assets.
In its reasoning, the court acknowledged the father's significant challenges with mental health and alcohol use, which affected his ability to parent effectively. Despite this, the court recognised the importance of the father's relationship with the children, particularly Y, who expressed a desire to maintain contact with her father. The court imposed strict conditions on the father's visitation to ensure the children's safety and well-being, including mandatory alcohol testing and restrictions on alcohol consumption during visitation periods. The court also outlined detailed arrangements for the children to spend time with the father, including specific times, locations for changeovers, and the use of a contact service to facilitate these arrangements. The court further ordered that the children live with the mother and that the father have supervised visitation and communication with Y, with provisions for X to potentially spend time with the father under certain conditions.
The final orders granted sole parental responsibility to the mother but provided for specific visitation and communication arrangements for the father. The court also addressed the property settlement, adjusting the division of assets and liabilities in favour of the mother due to her greater contributions to parenting and initial financial contributions. The court's orders aimed to balance the need for the children's safety and stability with the father's right to maintain a relationship with his children.
Orders
Orders of the court
HBC 524 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS TONKIN
Applicant
AND:
MR ROJAS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
22 MARCH 2024
THE COURT ORDERS THAT:
Parenting
1. The parenting Orders made by the Federal Circuit and Family Court of Australia in City B on 4 May 2022 be discharged.
Parental responsibility
2. The Mother have sole parental responsibility for X, born 2012, and Y, born 2015 (collectively “the children”).
3. The Mother must message the Father by the Our Family Wizard app of any decisions that she intends to make that concern ‘major long-term issues’ at least twenty eight (28) days prior to those decisions being made, major long-term issues being issues of a long term nature about:
(a) either of the children’s education (both current and future); and
(b) either of the children’s religious and cultural upbringing; and
(c) either of the children’s health; and
(d) either of the children’s name; and
(e) changes to either of the children’s living arrangements that make it significantly more difficult for either of the children to spend time with the Father.
4. Within 14 days of the date of any message sent by the Mother (or her nominee) by the Our Family Wizard app to the Father pursuant to Order 3 of these orders, the Father may respond in no more than 2 Our Family Wizard messages, setting out his feedback in a polite and business-like manner, on her notice of the major long-term issue which has arisen.
5. The Mother upon receiving the Father’s communication pursuant to paragraph 4 herein, must acknowledge receipt and give genuine consideration to the Father’s feedback.
6. Fifteen (15) days after providing written notice referred to in paragraph 3 herein, the Mother may then exercise her parental responsibility and must notify the Father in writing of the decision taken by the Our Family Wizard app.
Live with / spend time with
7. The children live with the Mother.
8. The Father spend time and communicate with Y in City B, Tasmania as follows:
(a) The Father shall see Y each Saturday and Sunday between 10:00am – 6:00pm on each day, with visits occurring on one weekend in every eight.
(b) The Father spend time with Y on Christmas Day in 2024 between 10:00am – 6:00pm, and each alternate year thereafter during the same hours.
9. The Father will meet all the costs of travel associated with spending time with Y.
10. Changeover for the purposes of any spend time with arrangements will be at C Contact Service, and for this purpose:
(a) The parties shall do all such acts and undertake all such steps and follow all directions as may be required by staff at C Contact Service so as to be able to utilise the said Service for the purposes of providing changeover as specified herein.
(b) The parties shall pay to C Contact Service as and when required such remuneration for the provision of it service from time to time. It being noted if the nominated times are not available with C Contact Service the times shall be the nearest most available time offered by the said Service.
(c) Each of the parties have leave to provide a copy of this Order to that service.
11. In the event C Contact Service is unable to facilitate changeover, changeover will take place between the Father and a third party nominated by the Mother at Hungry Jacks on E Street.
12. In the event the Father is unable to spend time with Y on any occasion, he will notify the Mother at his earliest convenience using the Calendar function on the Our Family Wizard app.
13. In the event the Father fails to spend time with Y for four consecutive visits, his time with Y will be suspended.
14. Within three days of travelling to Tasmania, the Father will engage with his local pathology service to perform a blood or supervised urinalysis test for alcohol with test results to be communicated via the Our Family Wizard app prior to 9:00am on the Saturday on which time is due to commence. The Father will not pay for additional medical services to assist the Mother in interpreting any result provided. If the test results return a positive result for the presence of alcohol, or the Father does not undertake the test, the Father’s time with Y shall not occur on that occasion, and the Mother is not obliged to provide make up time.
15. In the event X expresses a genuine desire to either or both of the parties to spend time and communicate with the Father:
(a) The party to whom X has expressed that wish to will cause the other parent to be notified through the ‘Our Family Wizard’ app and provide details and context of when and how the genuine desire was expressed;
(b) After receiving the notification in paragraph 15(a) herein, the parties will forthwith arrange an appointment between X and Dr F (or her treating psychologist if not Dr F) and request feedback in writing from the psychologist as to the issue.
(c) If the psychologist does not express any concern, then X may spend time or communicate with the father at any time Y does, and the Mother shall facilitate this.
16. Y have a video call with the Father by Our Family Wizard each Sunday from 5:00pm – 5:30pm Tasmania time.
17. Y have a video call with the Father by Our Family Wizard on “special days” from 5:00pm – 5:30pm Tasmania time, “special days” to include:
(a) Y’s birthday;
(b) Christmas Day, in odd years;
(c) Father’s Day; and
(d) Any other “special day” as agreed in writing by Our Family Wizard.
18. In respect of communication, if the Father has not joined the call by 5:15pm Tasmania time, the Mother is not obliged to cause Y to remain connected past that time on the Our Family Wizard app.
19. If the Father is unable to communicate with Y on any given day, he will provide notice to the mother at his earliest convenience through the calendar function of the Our Family Wizard app.
20. In the event the Father is affected by alcohol at the time of the call, he will not attend the call.
21. The Father shall be permitted to send a postcard or letter to Y and/or X on one occasion per month and the Mother must provide that postcard or letter to Y and invite X to read the card or letter, encourage Y to reply and facilitate Y or X replying, in the event they express a wish to do so.
22. The Mother will notify the Father in writing of any intended travel she intends to take with the Children in the event it coincides with the Father’s time according to this Order and for that purpose the Mother shall:
(a) Cause the Father to be provided information regarding the holiday departure and return date and the holiday location; and
(b) Provide the Father with makeup time on days and times agreed in writing between the Father and the Mother.
Communication between the parties
23. All communications and recordings of written agreements pursuant to these Orders must be by the Our Family Wizard app and the parties are to:
(a) Ensure their subscriptions and accounts remain active at all times;
(b) Only communicate in respect of arrangements to give effect to these Orders; and
(c) Confine communications to child focused and parenting related matters pursuant to these Orders.
24. Each of the parents shall cause the other to be notified of any changes to their contact information within seven (7) days of any change to same and the changes are to be notified via the Our Family Wizard app.
Restraints and injunctions
25. Pursuant to s 68B of the Family Law Act 1975 and for the personal protection of the parents and the children, the parents are restrained from committing any act of family violence toward the other or toward the children or exposing the children to any form of family violence.
26. The Father is restrained by injunction from drinking alcohol or using illicit substances during or within 24 hours prior and during spending time with or communicating with either child.
27. The parents will use civil and respectful language when communicating with each other or other members of each other’s households.
28. Either parent be at liberty to attend extra-curricular events, school sporting events, school concerts or similar of the children.
29. Each of the parties have liberty to provide a copy of these Orders to Dr F, the treating psychologist for X or any other treating psychologist for either of the children or their own treating psychologists or counsellors.
30. The appointment of the Independent Children’s Lawyer is extended for 30 days and the Independent Children’s Lawyer is to meet with the children to explain the final parenting orders and explain any questions they may have.
31. All extant applications be dismissed.
AND THE COURT NOTES THAT
A. the Applicant’s representative required additional time to make submissions in relation to the proposed property orders identified by the Court at delivery of judgment AND the proceedings have been adjourned to 25 March 2024 to receive those submissions, at which time final property orders consistent with the Reasons for Judgment will be pronounced.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.