Tonks and Tonks & Anor

[2017] FamCA 127

FAMILY COURT OF AUSTRALIA

TONKS & TONKS AND ANOR [2017] FamCA 127

FAMILY LAW – CHILDREN – Extempore ruling – interim parenting orders made – mother conceded the father no longer an unacceptable risk

FAMILY LAW – PROPERTY – Extempore ruling – final property orders made - just and equitable division of property

Family Law Act 1975 (Cth) s 75(2)

APPLICANT: Ms Tonks

RESPONDENT: Mr Tonks

INTERESTED PARTY Department of Human Services

INDEPENDENT CHILDREN’S LAWYER: Heinz & Partners

FILE NUMBER: MLC 2927 of 2015

DATE DELIVERED: 20 February 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 20 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Testart

SOLICITOR FOR THE APPLICANT: Sofra Solicitors

COUNSEL FOR THE RESPONDENT: Ms Fiskin

SOLICITOR FOR THE RESPONDENT: J A Middlemis

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

COUNSEL FOR THE DEPARTMENT OF HEALTH AND HUMAN SERVICES:

Dr Glass

Heinz & Partners

Mr Thomas

SOLICITOR FOR THE DEPARTMENT OF HEALTH AND HUMAN SERVICES: Department of Health and Human Services

Orders

PARENTING ORDERS

BY CONSENT IT IS ORDERED THAT UNTIL FURTHER ORDER:

1. All previous parenting orders be discharged.

2. The parents have equal shared parental responsibility for the Children, B, born … 2004 (“B”), and C, born … 2006 (“C”).

3. The Children and the parents attend upon Mr D, or such other person as may be agreed between the parties (“the Family Therapist”) for family therapy as directed by the Family Therapist, such therapy to be:

   (a)directed in the first instance towards the re-establishment of a relationship between C and the Husband, then with a view to giving B an opportunity to re-establish his relationship with the Husband;

   (b)at the parents’ equal cost; and

   (c)reportable at the discretion of the Family Therapist.

4. The Independent Children’s Lawyer be at liberty to provide copies of the following documents to the Family Therapist:

   (a)Family Reports of Ms E, dated 29 February 2016 and 26 October 2016;

   (b)Affidavit of Mr F – Department of Health and Human Services filed 28 November 2016; and

   (c)Assessments of the parents by Dr G, dated 4 December 2015 and 27 January 2017.

5. The parents authorise the Family Therapist to liaise with any other practitioners assisting the children.

6. The Family Therapist, the Department of Health & Human Services and CASA be at liberty to exchange information for the purpose of facilitating family therapy.

7. C live with the Wife.

8. C spend time with the Husband as follows:

   (a)supervised until 30 May 2017, each week for two hours at times and places as directed by the supervisor, Family Contact Service, or such other supervisor as may be agreed between the parties, such supervision:

   (i)to be at the parents’ equal cost;

   (ii)any notes taken by the supervisor shall be made available to the Family Therapist in a timely manner; and

   (iii)within seven (7) days each parent shall complete any intake procedures/enrolments required to enable such time to commence.

   (b)thereafter until 31 August 2017, each Sunday from 9:00am until 5:00pm;

   (c)thereafter until 30 November 2017, each alternate weekend from 9:00am Saturday until 5:00pm Sunday;

   (d)thereafter, as follows:

   (i)each alternate weekend from after school (or 3:30pm if a non-school day) on Friday until before school (or 9:00am if a non-school day) Monday;

   (ii)each alternate week from after school (or 3:30pm if a non-school day) on Tuesday until before school (or 9:00am if a non-school day) on Wednesday;

   (iii)for one half of each school holiday period by agreement and in default of agreement for the first half of each school holiday periods commencing in odd numbered years and for the second half commencing in even numbered years; and

   (e)at such other times as the parties may agree in writing.

9. The parents may agree to a variation of the timetable for C’s time with her father in consultation with the Family Therapist.

10. Upon satisfactory completion of his Therapeutic Treatment Order, B live with the Wife subject to any conditions imposed by the Department of Health and Human Services and each parent do all things necessary to comply with any such conditions.

11. B be at liberty to spend time with his Father at the same time as C, subject always to the provisions of these Orders, and any direction to the contrary by the Department of Health and Human Services.

12. Until further order, both parties be restrained by injunction from:

    (a)bringing the Children or either of them into contact with the Maternal Grandparents, Mr H and Ms H by any means, including by telephone or in writing;

    (b)denigrating the other in the presence or hearing of the Children or either of them, or permitting any other person doing so;

    (c)discussing any aspect of proceedings in any Court in the presence or hearing of the Children or either of them, or permitting any other person doing so; and

    (d)subject to these Orders, showing or providing copies of any Court documents to any person other than that party’s legal representative(s).

13. Each party shall notify the other forthwith in the event that the children suffer any serious injury or illness while with that party.

14. Each party shall notify the other, as soon as possible and in any event within 24 hours of any change to their address and/or landline and/or mobile telephone numbers and/or their email address.

15. Both parties be and are hereby authorised to liaise with the Children’s school and treating medical practitioners.

16. The parents facilitate the Children’s attendance upon Ms E at a time and place nominated by Ms E, for the purpose of explaining these Orders to the Children.

17. Each party be at liberty to provide a copy of these Orders to:-

    (a)the children’s schools; and

    (b)Ms I of CASA.

18. That all extant parenting applications be adjourned for mention before Johns J at 9.30am on 6 February 2018.

19. Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

PROPERTY ORDERS

BY CONSENT IT IS ORDERED

1. That the real property situate and known as J Street, Suburb K being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the real property”) be forthwith sold altogether out of Court (“the sale”) and the proceeds of the sale be applied:-

   (a)First to pay all costs, commission and expenses of the said sale; and

   (b)Secondly to discharge the mortgage and any other encumbrance affecting the real property; and

   (c)The husband be reimbursed Dr G’s fees in the amount of $3,200.00 in accordance with paragraph 1 of the Orders made on 30 September 2015 (noting that the husband paid the entirety of such costs at first instance); and

   (d)Thirdly the balance then remaining be divided in the proportions of:-

   (i)60 per cent to the wife; and

   (ii)40 per cent to the husband.

2. That pending the completion of the sale:

   (a)The wife have the sole right to occupy the real property and that during such right of occupation the wife pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the real property as they fall due, save that the husband pay $45.00 per week towards the mortgage;

   (b)The parties hold their respective interests in the real property upon trust pursuant to these orders;

   (c)Neither party encumber or further encumber the real property without the consent in writing of the other party.

3. The following provisions shall apply to the sale of the real property:-

   (a)It shall be listed with L Real Estate Agents (“the selling agent”);

   (b)The conveyancing transaction shall be conducted by M Law; and

   (c)The proposed selling price shall be as agreed between the parties and failing agreement as recommended by the selling agent; and

   (d)The property shall be sold subject to a 30 or 60 day contract.

4. That unless otherwise specified in these order and save for the purposes of enforcing any monies due under these or any subsequent orders:

   (a)Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders.

   (b)Monies standing to the credit of the parties in any joint bank account are to be closed and retained by the wife.

   (c)Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other.

   (d)Insurance policies remain the sole property of the life insured named therein.

   (e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

   (f)Any joint tenancy of parties in any real or personal estate is hereby expressly severed.

   (g)Each party foregoes any claim they may have to any inheritances to which the other party is entitled either presently or in the future.

5. That all extant property applications be otherwise dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tonks & Tonks has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 2927 of 2015

Ms Tonks

Applicant

And

Mr Tonks

Respondent

REASONS FOR JUDGMENT

1. This is a matter that comes before me today for final hearing with respect to both parenting and property matters.  It is a matter that has been in my docket now for a period of, I think, almost a year.  The parenting matters relate to the parenting arrangements for the parties’ two children, C, who is aged 11 years, and B, who is now aged 13 years.  This is a matter which has had a long and difficult history in my docket as a result of very serious allegations of sexual abuse levelled against the husband, it being alleged he has sexually abused both children, and also as a result of disclosures made by the children as to what can be described as sexually inappropriate contact between them, which has been the subject of proceedings in the Children’s Court.

2. The trial was listed for eight days.  The parties have had reports prepared by Dr G who has assessed both the husband and the wife.  There have been two Family Reports prepared by the family consultant, Ms E.  The parties have had the advantage of having advice given to them by experienced family law practitioners.  At the commencement of the hearing today, they sought that the matter be stood down for discussions.  I am now presented with a minute of proposed interim orders which will provide for the future parenting of the children, at least for the balance of this year and probably into early next year.

3. I am asked to make interim orders and have the matter returned to Court within 12 months so that there can be a review and reassessment as to what is going to be in the children’s best interests moving forward.  The orders provide for a reintroduction between C and her father.  Since the allegations against the father were raised in about January of 2015, neither child has spent any time with their father.  The vision for this family is that they will engage in family therapy, that initially C will spend supervised time with her father, and that gradually that time will move to unsupervised time on a Sunday. Thereafter overnight from Saturday to Sunday and an alternate weekend and culminate in an alternate weekend routine of after school Friday to the commencement of school Monday, together with another night in the alternate week, as well as half school holidays.

4. It is a significant shift in the parenting arrangements for C, and it’s a shift which indicates a significant change in the approach and attitude, particularly within the mother’s sphere.  I sought some indication from counsel appearing for the mother as to whether or not that indicated a concession by her that, in her mind, the father does not pose an unacceptable risk to the children.  Counsel for the mother confirmed that there has been a shift in the mother’s approach, that she has had cause to reflect and review all of the material, particularly having regard to the reports of Dr G and Ms E.  Having regard to all of that material, she has formed the view that the father presents no risk to the children.

5. It is on that basis that these orders are presented to me today.  Having read all of the material and having heard submissions from counsel representing each of the parties, including counsel for the Independent Children’s Lawyer and the Department of Health and Human Services, I am satisfied that the proposed orders are appropriate and in the children’s best interests.  They are orders that will almost certainly provide the children with an opportunity to be reintroduced to their father, to re-establish a relationship with him and to put what has been a very difficult and sad chapter in their lives behind them and to look to the future, to reform the important relationship with their father. 

6. On that basis, I’m satisfied that the orders are appropriate.  The orders also provide for injunctions.  The children are to be protected from discussion of any aspect of these court proceedings.  There are injunctions restraining the parties from denigrating the other or permitting other people to do so in the children’s presence and, at this time, interim orders also restrain the parties from bringing the children into contact with the maternal grandparents, whether physically or by telephone or in writing.  Having regard to the history of the matter and how disclosures have come to light, at this juncture I’m satisfied that that order is appropriate.  It is important that at the family therapy,   the children have the opportunity to reengage and that it is done in an environment where they are not going to be subjected to any influence which may undermine that process. 

7. That has, no doubt, been a difficult concession made within the maternal family, but an important one, having regard to the history of the matter and, again, it is an order that, in my view, is appropriate in the children’s best interests. 

8. The property matters are also before the Court. The pool of assets inclusive of superannuation was something a little in excess of $350,000. A modest pool. The orders proposed provide for a division of the non-superannuation assets on the basis of a 60/40 split. That division takes into account the contributions made by each of the parties during the course of the relationship. Each has received inheritances. The husband’s inheritance was greater than that of the wife’s, but it also takes into account the relevant section 75(2) factors, the fact that the husband has a greater income than that of the wife.

9. The wife will have C living with her in the short term, and there is a hope which is envisaged in these orders that, subject to the consent of the department, that in the future, B, too, will come to live with the wife.  The proposed property settlement takes into account all of those factors.  Having regard to those matters, I am satisfied that the proposed property orders are just and equitable. 

10. Lastly, I take the opportunity to congratulate the parties on being able to resolve their dispute in this way.  It has been a very difficulty matter.  I have no doubt that many tears have been shed by both sides because of the nature of the dispute. It has been one which no doubt has been a tremendous burden on both families.  So to be able to come to Court today and resolve the matter in this way gives hope for the future, for C and B’s future moving forward.  So congratulations to both of you and congratulations to the legal practitioners. 

11. Now, it occurs to me I need to find a date for your interim parenting matters.  It seems to me that bringing the matter back probably in the early part of next year to give some opportunity for those holiday orders to take effect.

12. I’m not sure that I have next year’s calendar with me on the bench.  What I will do is simply adjourn extant parenting applications for further mention on a date to be fixed.  Ideally it will be in the last week of January 2018. 

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 20 February 2017.

Associate: 

Date: