Aster & Neeley (No 2)
[2023] FedCFamC1F 1022
•30 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aster & Neeley (No 2) [2023] FedCFamC1F 1022
File number(s): BRC 5847 of 2022 Judgment of: BAUMANN J Date of judgment: 30 November 2023 Catchwords: FAMILY LAW – PARENTING – Final form of orders consistent with Reasons delivered Legislation: Family Law Act 1975 (Cth) Division: Division 1 First Instance Number of paragraphs: 5 Date of last submission/s: 14 November 2023 Date of hearing: 16-17 October 2023 Place: Brisbane Counsel for the Applicant: Mr Casey Solicitor for the Applicant: Beck Legal Group Counsel for the Respondent: Mr Trost Solicitor for the Respondent: Finnigan Smith Counsel for the Independent Children’s Lawyer: Ms Chekirova Solicitor for the Independent Children’s Lawyer: Gary Rolfe Solicitors ORDERS
BRC 5847 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ASTER
Applicant
AND: MS NEELEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
30 NOVEMBER 2023
THE COURT ORDERS:
Parental responsibility
1.That the mother and the father have equal shared parental responsibility in respect of all decisions relating to the long-term issues for the child, X born 2021 (“the child”), including but not limited to:
(a)the child’s education;
(b)the child’s health;
(c)the child’s religious and cultural upbringing;
(d)the child’s names; and
(e)any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.
2.That notwithstanding the provisions of Order 1 hereof:
(a)the mother shall be responsible for the daily care, welfare and development of the child when the child is spending time with her; and
(b)the father shall be responsible for the daily care, welfare and development of the child when the child is spending time with him.
Living arrangements
3.That the child live with the father.
Pending the child commencing prep in January 2026
4.That the child shall spend time with the mother as agreed between the parents in writing, but failing such agreement:
(a)during the Queensland school terms, for up to one (1) week in Queensland per school term, provided that the mother is substantially present;
(b)during the Queensland school holidays at the end of terms one (1), two (2) and three (3), for one (1) week in Queensland, such time preferably being when the child’s half-siblings are in the mother’s care;
(c)during the Queensland school holidays at the end of term four (4), for a period not less than two (2) weeks in Queensland to include Christmas Day in odd numbered years and exclude Christmas Day in even numbered years, and such time preferably being when the child’s half-siblings are in the mother’s care;
(d)for the purposes of changeover:
(i)the child shall be collected by the mother at the commencement of the child’s time with the mother at V Airport;
(ii)the child shall be collected by the father at the conclusion of the child’s time with the mother at either U Airport or W Airport (as the parents shall agree).
(e)all costs associated with such travel shall be shared equally by the parents including the following fares:
(i)Child and adult – Melbourne to Brisbane;
(ii)Adult returning to Melbourne;
(iii)Child and adult – Brisbane to Melbourne; and
(iv)Adult from Melbourne to Brisbane.
When the child commences prep in January 2026
5.That the child shall spend time with the mother as agreed between the parents in writing, but failing such agreement:
(a)for one (1) weekend per school term from after school Friday to Sunday afternoon;
(b)for the first half of the Easter Victorian school holidays in even numbered years and for the second half in odd numbered years;
(c)for the first half of the September Victorian school holidays each year;
(d)for the first half of the Victoria Christmas school holidays (to include Christmas Day) in odd numbered years and for the second half (to exclude Christmas Day) in even numbered years;
(e)for the entirety of the June/July Victoria school holidays;
(f)that school holiday time will commence after school on the last day of school term to 5.00pm on the day that is calculated to be the halfway point of the school holidays;
(g)that the number of nights in each school holiday is to be used to calculate half of the school holidays;
(h)if there is an uneven number of nights on the school holiday period, then the mother will retain the additional night;
(i)that for the second half of the Victoria Christmas school holidays in even numbered years, the child’s time with mother shall include the child’s birthday and shall conclude on the Wednesday immediately prior to the start of each school year;
(j)until such time as the child is able to travel as an unaccompanied minor:
(i)the child shall be collected by the mother at the commencement of the child’s time with the mother at V Airport; and
(ii)the child shall be collected by the father at the conclusion of the child’s time with the mother at U Airport or W Airport (as the parent shall agree).
(k)all costs associated with such travel (including any adult fares required prior to the child travelling as an unaccompanied minor) shall be shared equally by the parents in accordance with Order 4(e) hereof.
Communication
6.That the child shall communicate with the parent who the child is not currently spending time with (“the non-residential parent”) as agreed between the parents in writing, but failing such agreement as follows:
(a)Via Facetime/video call every Wednesday and Saturday at 6.00pm to 7.00pm (AEST); and
(b)The non-residential parent is to initiate the video call to the residential parent’s mobile phone;
(c)The residential parent is to ensure that the child is available to receive such video call; and
(d)The residential parent shall afford the child privacy (as much as reasonably and practicably possible due to the child’s age) while the child is communicating with the non-residential parent.
Special occasions
7.That notwithstanding any other Order, the child shall spend time and communicate with the parents on special occasions as agreed between the parents in writing, but failing such agreement as follows:
(a)On the child’s birthday, with the non-residential parent via Facetime/video call at 6.00pm to 7.00pm;
(b)In the event the child is spending time with the father on the mother’s birthday and/or Mother’s Day, the child shall communicate with the mother via Facetime/video call at 6.00pm to 7.00pm; and
(c)In the event the child is spending time with the mother on the father’s birthday and/or Father’s Day, the child shall communicate with the father via Facetime/video call at 6.00pm to 7.00pm.
Privacy
8.That during the time the child is with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the child about the personal life of the other parent;
(b)speak respectfully of the other parent;
(c)not speak to the child in relation to any adult issues and/or parenting matters; and
(d)not denigrate or insult the other parent in the presence of or hearing of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing of or presence of the child.
Restraints
9.That each of the parents are restrained and an injunction hereby issues restraining them from:
(a)bringing the child into contact with Mr E;
(b)consuming illicit drugs whilst the child is in their care;
(c)consuming alcohol to excess whilst the child is in their care;
(d)using any method of physical discipline, or permitting any other person to use any method of physical discipline, on the child.
Other issues
10.That the parents will:
(a)keep the other parent informed at all times of their email address, landline contact telephone number and mobile contact telephone number, and advise of any changes thereto within forty eight (48) hours of the change; and
(b)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child.
11.That the parents do all things necessary to ensure the other parent is listed as an emergency contact with all allied health care providers, medical practitioners, care providers, schools or extra-curricular activities that the child may attend from time to time.
12.That this Order shall operate as any authority necessary for any allied health care provider including but not limited to medical practitioners, specialists or hospital treating the child and any care and/or educational facility which the child may attend upon from time to time to provide to the other parent such information as they may request regarding the child’s health, welfare and development at their own expense.
13.That both parents notify the other immediately, and if immediately is not possible, within four (4) hours, upon the child suffering any serious injury, illness, accident or emergency whilst in their care and advise the other parent of the treatment provided and the contact details for the relevant medical service providers as soon as reasonably possible.
14.That in the event the child requires medication, such medication and relevant dispensation instructions shall accompany the child at changeovers.
15.That each parent be at liberty to attend at all school functions and events that are normally attended by parents.
16.That the Independent Children’s Lawyer be discharged.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aster & Neeley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
Arising from Reasons for Judgment delivered 31 October 2023 (“the said Reasons”) in this matter, the parties were directed, and given the opportunity, to provide further submissions as to the form of order for the reasons set out at [77]–[ 89] of the said Reasons.
Further written submissions have been filed and considered as follows:
(a)From the Independent Children’s Lawyer on 7 November 2023; and
(b)From the mother on 14 November 2023.
The father has chosen not to file any further submissions.
Based on those submissions, the Court pronounces the orders which appear at the commencement of these Reasons, and makes the following observations/findings to explain the determinations reflected in the orders, namely:
(a)Costs and facilitation of travel were always going to be an issue in this case as identified in the said Reasons. At [86], I determined that with the reduced level of visits, that the mother and father should share the costs of travel equally. The Independent Children’s Lawyer’s proposed minute (order 4(d)) and 5(i)) provide for all changeovers to occur at the V Airport. At proposed orders 4(e) and 5(j), the minute identified that the “costs of travel shall be shared equally”.
In response, the mother, quite fairly in my assessment, at paragraphs 6 and 7 says it would be “unfair for the father to be responsible for all of the travel with the child” and proposed that the father deliver the child to the mother at V Airport at commencement and that the mother will deliver the child to the father at U Airport at conclusion Although my recollection is that the father proposed that he would prefer W Airport rather than U Airport, in Melbourne, I will adopt the mother’s suggestion and leave the actual airport in Melbourne to the parties to decide which might depend on available flights and costs.
(b)After the child commences preparatory schooling in January 2026, it is optimal that as much school holiday time as is possible can be shared by X with her Queensland-based siblings – although each State has at times school holiday periods commencing on different dates. The mother, at paragraphs 11 to 14 of her submissions, turns her mind to those practical issues, and I adopt her proposed orders in substitution for the initial proposal of the Independent Children’s Lawyer.
(c)The mother further contends, and I agree, that X’s birthday should be included in the mother’s holiday time each odd numbered year;
(d)In respect of facetime video calls, it would suit the mother’s household if the calls were to take place between 6.00pm and 7.00pm Australian Eastern Standard Time every Wednesday and Saturday. In the absence of any submissions from the father, I will adopt the mother’s proposal;
(e)At paragraph 19, the mother seeks a restraint being added to proposed order 9, from publishing the child’s image on social media. Whilst I understand the concerns express, I am not satisfied an evidentiary foundation for the need for such an order has been established;
(f)The mother seeks orders relating to the child obtaining a passport and for future international travel. There was no evidence during the trial that identified this as an issue. Whilst I accept at some future time “either parent may wish to embark on travel with the child” and the mother says “as her partner’s family resides in New Zealand and they will likely visit semi regularly”, the issue of future overseas travel was not raised as an issue at the trial. If the mother and father agree on the order the mother proposes (or something similar), the parties can file a minute of consent orders, however I am not prepared to make such an order with possible serious consequences, unless the parties have indicated their consent to such an order. The father has not done so, and he is therefore currently in the same position as the mother.
The orders which appear at the commencement of these short additional Reasons are in X’s best interests.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 30 November 2023
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