Baier & Baier
[2022] FedCFamC1F 168
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Baier & Baier [2022] FedCFamC1F 168
File number(s): SYC 1254 of 2020 Judgment of: ALDRIDGE J Date of judgment: 16 March 2022 Catchwords: FAMILY LAW – PARENTING – Final orders made by consent – Where the applicant objects to a payment contributing to the costs of the Independent Children’s Lawyer – Consideration of all factors – Applicant to pay the costs of the Independent Children’s Lawyer in a fixed sum. Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 14–16 March 2022 Place: Sydney Counsel for the Applicant: Mr Wong Solicitor for the Applicant: First Choice Family Lawyers The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Stolier Solicitor for the Independent Children’s Lawyer: Mark Whelan Lawyer Pty Ltd ORDERS
SYC 1254 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BAIER
Applicant
AND: MS BAIER
Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
16 MARCH 2022
THE COURT ORDERS BY CONSENT THAT:
1.All previous orders made in these proceedings to date are discharged and thereafter, the following orders are to apply.
2.The parties have equal shared parental responsibility for the child of the marriage, namely X born in 2012 (“the child”).
3.At the conclusion of the child’s primary school education, in 2024, the child be permitted to relocate with the respondent mother (“the mother”) to the C City area and that until then, the child remain enrolled in B School.
4.No later than six (6) months prior to the child commencing High School, the parties are to do all acts and things necessary including signing any such documents which may be necessary to enrol the child in an agreed High School and, in the event the parties are unable to come to an agreement, the child is to be enrolled in the local public High School in the catchment area where she resides with the mother.
5.Except as provided for in Orders 6 and 7 below, the child shall live with the mother.
6.The child is to spend time with the applicant father (“the father”) commencing from the date of these orders, as follows: –
(a)Until the conclusion of her primary school education in 2024, with the father during school term, at such times as agreed between the parties or failing agreement, in Week One from the conclusion of school on Wednesday until 7.30 pm and in Week Two from the conclusion of school on Friday until the commencement of school on Monday (or the Tuesday if the Monday is a pupil free day) and continuing each alternate week thereafter;
(b)From the conclusion of her primary school education in 2024, with the father during school term, at such times as agreed between the parties or failing agreement, from the conclusion of school on Friday, if the father is to collect the child from C City and if not, from 6.00 pm at the changeover location on the Friday, until 7.00 pm on Sunday and continuing each alternate week thereafter;
(c)That during all New South Wales school holidays, the child shall live with the father during such periods as agreed between the parties or, failing agreement, during the first half of the school holidays in even-numbered years commencing from the date of these orders, and during the second half of the school holidays in odd numbered years, commencing from the last school day;
(d)In the event that Christmas Day does not fall within the periods that the child shall be spending time with the father pursuant to these orders, the child shall spend time with the father at such times as agreed between the parties or failing agreement, between 11.00 am on 23 December until 11.00 am on Christmas Eve in odd-numbered years;
(e)That in the event that the Catholic Easter long weekend does not fall within the periods that the child shall be spending time with the father pursuant to these orders, the child shall spend time with the father during Easter, at such times as agreed between the parties or, failing agreement, from 10.00 am on Good Friday until 10.00 am Easter Sunday in even-numbered years and alternate every year thereafter;
(f)That in the event that the child’s birthday falls on a weekday on which the father is not already spending time with the child pursuant to these orders, the child shall spend time with the father on the child's birthday at such times agreed between the parties, or failing agreement and where practicable following the child's relocation to C City, from the conclusion of school until 7.00 pm;
(g)That in the event that the child’s birthday falls on a weekend on which the father is not already spending time with the child pursuant to these orders, the child shall spend time with the father on the child’s birthday at such times agreed between the parties, or failing agreement, from 9.00 am until 2.00 pm;
(h)In the event that Father’s Day does not fall within the periods that the child shall be spending time with the father pursuant to these orders, the child shall spend time with the father on Father’s Day at such times as agreed between the parties or failing agreement, prior to the child relocating to C City from the conclusion of school on Friday until the commencement of school on Monday and following the child relocating to C City, until 6.00 pm on Sunday; and
(i)At such other times and by such other means as agreed between the parties.
7.That notwithstanding anything elsewhere contained in these orders, the child shall spend time with the mother on special occasions, as follows:
(a)That during all New South Wales school holidays, the child shall live with the mother during such periods as agreed between the parties or, failing agreement, during the first half of the school holidays in odd-numbered years commencing from the date of these orders, and during the second half of the school holidays in even numbered years;
(b)In the event that Christmas Day does not fall within the periods that the child shall be spending time with the mother pursuant to these orders, the child shall spend time with the mother at such times as agreed between the parties or failing agreement, between 11.00 am on 23 December until 11.00 am on Christmas Eve in even-numbered years;
(c)That in the event that the Catholic Easter long weekend does not fall within the periods that the child shall be spending time with the mother pursuant to these orders, the child shall spend time with the mother during Easter, at such times as agreed between the parties or, failing agreement, from 10.00 am on Good Friday until 10.00 am Easter Sunday in odd-numbered years and alternate every year thereafter;
(d)In the event that Mother’s Day does not fall within the periods that the child shall be spending time with the mother pursuant to these orders, the child shall spend time with the mother on Mother’s Day at such times as agreed between the parties or failing agreement, prior to the child relocating to C City from the conclusion of school on Friday until the commencement of school on Monday and following the child relocating to C City, until 6.00 pm on Sunday;
(e)That in the event that the child’s birthday fall on a weekday on which the mother is not already spending time with the child pursuant to these orders, the child shall spend time with the mother on the child’s birthday at such times as agreed between the parties or failing agreement, from the conclusion of school until 7.00 pm;
(f)That in the event that the child’s birthday fall on a weekend on which the mother is not already spending time with the child pursuant to these orders, the child shall spend time with the mother on the child’s birthdays at such times as agreed between the parties or failing agreement, from 2.00 pm until 7.00 pm; and
(g)At such other times and by such other means as may be agreed between the parties.
8.That for the purposes of changeover, unless otherwise agreed between the parties, and except where the child is to be collected by a parent from school at the commencement of their time with the child and delivered to school at the conclusion of their time with the child, changeover is to take place prior to the conclusion of the child’s primary school education at Suburb E McDonalds and, thereafter and upon the child relocating to C City, at the play centre at D Shopping Centre or any such other location at the D Shopping Centre as may be agreed between the parties in writing.
9.That whilst the child is living with a party, the other party be entitled to communicate with the child by, text message, FaceTime and/or telephone at such times as agreed between the parties or failing agreement, every second day between 6.30 pm and 7.00 pm and the party do all things necessary to encourage and facilitate such communication.
10.That the parties are at liberty to travel interstate or overseas with the child during the child’s time with the party pursuant to these orders provided that at least twenty-one (21) days (or such shorter period as the parties may agree) prior to the intended date of departure, the party intending to travel:
(a)Gives written notice to the other party of their intention to travel interstate or overseas with the child;
(b)Provides the other party with any flight or travel itinerary;
(c)Informs the other party of the address of any locations where the child will be staying, the telephone numbers on which the child can be contacted and the names of any persons travelling with the child;
(d)Ensures that the child have telephone and/or Facetime contact with the other party as provided for in these orders or, if not practicable, at reasonable times during the said travel; and
(e)The party intending to travel with the child provides to the other party, for overseas travel, a certificate of travel insurance, which covers the child and the travelling parent with insurance for the relevant destination(s) and period(s) of travel.
11.That the mother retain the child’s passport. In the event that the father is the travelling parent, the father shall return the child’s passport to the mother within three (3) days upon the father’s return with the child.
12.That each party notify the other within 24 hours of any changes to their address, landline or mobile telephone number or email address.
13.That the parties continue to communicate via the 2Houses Application or by way of text message in the event of an emergency.
14.That the parties provide a copy of these orders to any out of school care, recreational organisation or school which the child from time-to-time attend and each party is to:
(a)List the other parent as well as themselves as a primary emergency contact in the event of an emergency involving the child anytime a situation arises requiring an emergency contact, together with one alternative contact in the event that neither parent is able to be reached on such occasion;
(b)Authorise such out of school care, recreational organisation or school to communicate with each party on matters relating to the child’s welfare and education, including school events;
(c)Authorise such out of school care, recreational organisation or school to provide notices, newsletters and reports directly to each party; and
(d)Authorise such out of school care, recreational organisation or school to contact each party in the event of an emergency.
15.In the event that the child suffers any significant injury, illness or requires any medical attention while in the care of a party, that party shall notify the other as soon as practicable, but no later than one (1) hour, of said injury, illness or medical treatment.
16.That at changeovers each party is to provide to the other any medication prescribed for the child whilst the child is in that party’s care together with any information or directions provided by the child’s treatment providers or health professionals as to how that medication is to be taken by or administered to the child, and each party is to ensure that the child takes, or that they administer to the child, any prescribed medication in accordance with such directions while the child is in their respective care.
17.That the parties are hereby restrained from the following: –
(a)Discussing these proceedings with all or individually with the child or in their presence unless required by a Court order and showing the child documents relating to the proceedings including reports and affidavits, and from discussing the contents of any such documentation with the child;
(b)Passing messages to the other parent through the child;
(c)Physically disciplining the child; and
(d)Making any critical, disrespectful, disparaging or derogatory remarks about the other parent or any member of the other parent’s family or household to the child, or in the presence or hearing of the child, or allowing any third party to do so and such order is to include verbal, written or electronic means including email, text message, Facebook and other forms of social media.
18.That the parents each do all acts to facilitate the child attending such appointments with her Anchor counsellor for so long as the counsellor recommends.
19.Subject to any waiver granted by Legal Aid New South Wales that the mother pay to Legal Aid New South Wales within two (2) months a contribution to the costs of the Independent Children’s Lawyer as follows:
(a)$ 6,116.66.
20.After final orders are made, that the mother bring the child to the office of the Independent Children’s Lawyer (or via Teams if personal attendance is impracticable) on such date and at such time as the Independent Children’s Lawyer nominates for the purpose of him informing the child of the Court’s decision.
THE COURT FURTHER ORDERS THAT:
21.Subject to any waiver granted by Legal Aid New South Wales, the applicant is to pay Legal Aid New South Wales, within six (6) months, a contribution to the costs of the Independent Children’s Lawyer in the sum of $7,766.66.
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 Baier & Baier has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
A suite of parenting orders was made by consent.
The Independent Children’s Lawyer seeks a contribution to his costs from the applicant, Mr Baier, in the sum of $7,766.66.
Mr Baier objects to the payment of that sum on the basis that he will shortly incur the costs of re-establishing a household. There is the cost of travel to C City, but that is not to start for three years. He says he is an average wage earner and has earlier on, borne his own legal expenses and had contributed to the costs of the single expert.
I am shortly to deal with the property settlement application between the parties, which will involve the division of assets of an approximate value of $1.3 million, together with superannuation of some $852,000.
I appreciate that Mr Baier may have had some financial difficulties recently because he has been stood down from work during COVID-19. However, taking all those things into account, I think the appropriate order is that he pay the sum claimed, but be given six months to do so.
Accordingly, I make the following additional order, subject to any waiver granted by Legal Aid New South Wales, that Mr Baier pay to Legal Aid New South Wales, within six months, a contribution to the costs of the Independent Children’s Lawyer in the sum of $7,766.66.
I certify that the preceding five (5) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 17 March 2022
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