Tozer and Tozer - [2008] FMCAfam 537

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TOZER & TOZER

[2008] FMCAfam 537

FAMILY LAW – Parenting orders – father making threats to beat up the mother and kill the mother’s friend in the presence and hearing of the children – father persisting in the belief that the mother will reconcile with him – father using children to tell mother he still loves her.

Family Law Act 1975, ss.4(1), 60B, 60CA, 60CC, 61DA, 65DAA

Oscar v Traynor [2008] FamCA 95
Rice and Asplund (1978) 6 Fam LR 570

Applicant:

MS TOZER

Respondent:

MR TOZER

File Number:

MLM 9741 of 2006

Judgment of:

Riley FM

Hearing dates:

29 & 30 May 2008

Date of Last Submission:

30 May 2008

Delivered at:

Melbourne

Delivered on:

5 June 2008

REPRESENTATION

Counsel for the Applicant:

Ms Phelan

Solicitors for the Applicant:

Pearsons Barristers & Solicitors

Counsel for the Respondent:

None

Solicitors for the Respondent:

Allan McMonnies

Counsel for the Independent Children’s Lawyer:

Mr Grieg

Solicitors for the Independent Children’s Lawyer:

Perry Weston Lawyers

ORDERS

All previous parenting orders be discharged.
The mother have sole parental responsibility for [A] born in 2001 and [B] born in 2003 (“the children”).
The father continue to attend weekly group therapy sessions with Dr S until Dr S gives to the father, the mother and the independent children’s lawyer a certificate stating that in his opinion there is a very low risk of the father frightening or distressing his children, or confusing them by discussing with them the possibility of their parents reconciling (“the certificate”).
The parties forthwith sign all necessary documents to arrange for the children to spend time with the father at [X] Contact Centre.
Until Dr S provides the certificate in accordance with these orders, the children spend two hours with their father each Sunday at [X] Contact Centre.
After Dr S provides the certificate in accordance with these orders, the children spend time with their father as follows:
(a)each Sunday between 2.00 pm and 4.00 pm for four weeks;
(b)each Sunday between 1.00 pm and 5.00 pm for the following four weeks;
(c)each Sunday between 11.00 am and 5.00 pm for the following four weeks;
(d)each Sunday between 9.00 am and 5.00 pm thereafter;
(e)each Tuesday and Thursday between 7.00 pm and 7.30 pm by telephone; and
(f)at such further or other times as the mother and father may agree.
Changeover is to occur at the [X] Contact Centre, unless otherwise agreed between the mother and the father.
By consent, the father be restrained from discussing the possibility of him reconciling with the mother in the presence or hearing of the children.
By consent, the father be restrained from using any illicit substance

12 hours before or during any time the children spend with him.
The independent children’s lawyer provide a copy of these orders and reasons to Dr S and [X] Contact Centre.
The independent children’s lawyer be discharged on 5 June 2009, or as otherwise ordered.
Each party have liberty to apply in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tozer and Tozer

Details

AGLC: Tozer and Tozer [2008] FMCAfam 537
Case: [2008] FMCAfam 537
Decision Date: 5 June 2008

CaseChat Overview and Summary

Tozer and Tozer involved a dispute between the parents of two children born in 2001 and 2003. The court was asked to determine the parenting arrangements for the children and to make orders regarding the father’s contact with them. The mother sought sole parental responsibility, while the father wanted shared responsibility and unsupervised contact. The court was also tasked with deciding on the conditions under which the father could have contact with the children.

The primary legal issues the court had to address were whether the father posed a risk to the children's welfare by potentially frightening or distressing them, and if so, what measures should be taken to mitigate this risk. The court also needed to consider the appropriate parenting arrangements that would best serve the children's interests.

The court concluded that the father had previously expressed concerns about the children's safety and wellbeing, and there was evidence that the children had become distressed when exposed to discussions about their parents reconciling. The court found that the father’s contact with the children should be supervised until he obtained a certificate from his therapist stating that there was a very low risk of him frightening or distressing the children. The court ordered supervised contact at a contact centre, with the father's unsupervised contact to commence only after the certificate was provided. The court also imposed restrictions on the father discussing the possibility of reconciliation with the children and using illicit substances.

The court ordered that the mother have sole parental responsibility for the children and that the father attend weekly group therapy sessions. The father was to have contact with the children under a phased schedule, starting with supervised contact at a contact centre, followed by increased unsupervised contact over time. The court further ordered that the father refrain from discussing the possibility of reconciliation with the children and from using illicit substances. The court granted liberty to both parties to apply for variations to the contact arrangements and the supervision.

Orders

Orders of the court

All previous parenting orders be discharged.

The mother have sole parental responsibility for [A] born in 2001 and [B] born in 2003 (“the children”).

The father continue to attend weekly group therapy sessions with Dr S until Dr S gives to the father, the mother and the independent children’s lawyer a certificate stating that in his opinion there is a very low risk of the father frightening or distressing his children, or confusing them by discussing with them the possibility of their parents reconciling (“the certificate”).

The parties forthwith sign all necessary documents to arrange for the children to spend time with the father at [X] Contact Centre.

Until Dr S provides the certificate in accordance with these orders, the children spend two hours with their father each Sunday at [X] Contact Centre.

After Dr S provides the certificate in accordance with these orders, the children spend time with their father as follows:

(a) each Sunday between 2.00 pm and 4.00 pm for four weeks;

(b) each Sunday between 1.00 pm and 5.00 pm for the following four weeks;

(d) each Sunday between 9.00 am and 5.00 pm thereafter;

(e) each Tuesday and Thursday between 7.00 pm and 7.30 pm by telephone; and

(f) at such further or other times as the mother and father may agree.

Changeover is to occur at the [X] Contact Centre, unless otherwise agreed between the mother and the father.

By consent, the father be restrained from discussing the possibility of him reconciling with the mother in the presence or hearing of the children.

By consent, the father be restrained from using any illicit substance

12 hours before or during any time the children spend with him.

10.

The independent children’s lawyer provide a copy of these orders and reasons to Dr S and [X] Contact Centre.

11.

The independent children’s lawyer be discharged on 5 June 2009, or as otherwise ordered.

12.

Each party have liberty to apply in relation to:

(a) the arrangements for the children spending time with their father at a contact centre;

(b) the provision of the certificate by Dr S; and

AND THE COURT REQUESTS THAT [X] Contact Centre provide supervision for the children’s time with their father until Dr S provides the certificate or for as long as possible.

AND THE COURT NOTES THAT the reason for the supervision is to protect the children from the father saying things to the children that frighten or distress them and to protect the children from their father discussing with them the possibility of their parents reconciling.

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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