Bakken & Bakken
[2021] FedCFamC2F 245
•21 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bakken & Bakken [2021] FedCFamC2F 245
File number(s): BRC 12701 of 2016 Judgment of: JUDGE COPE Date of judgment: 21 September 2021 Catchwords: FAMILY LAW – CHILDREN – Two children aged ten and seven years - One child with special needs – Where consent orders reached regarding the majority of issues – Where the Court was left to determine three remaining issues – Where mother seeks to manage the consumables of NDIS support and father seeks to have a plan manager – Dispute regarding alternating of first and second half of the school holidays time – Where child anxious and vomiting during travel for changeovers – Orders made in line with recommendations of ICL and in the main supported by the mother. Legislation: Family Law Act 1975 Part VII, ss 60B, 60CC, 61DA, 65D Cases cited: Goode & Goode (2006) FLC 93-286 Division: Division 2 Family Law Number of paragraphs: 84 Date of hearing: 20 & 21 September 2021 Place: Brisbane Counsel for the Applicant: Mr Berghofer Counsel for the Respondent: Mr Anderson ORDERS
BRC 12701 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BAKKEN Applicant AND: MS BAKKEN Respondent
ORDER MADE BY:
JUDGE COPE
DATE OF ORDER:
21 SEPTEMBER 2021
BY CONSENT, THE COURT ORDERS ON A FINAL BASIS THAT:
Parental Responsibility:
1.The parties shall have equal shared parental responsibility, both long term and day-to-day for the children X born in 2011 and Y born in 2014 (herein called “the children”), but subject to orders 34 and 44 herein.
2.The parties shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
a.They shall inform the other parent about the decision to be made;
b.They shall consult with each other on terms that they agree; and
c.They shall make genuine effort to come to a joint decision.
Live With and Spend Time:
3.The children shall live with the Mother.
4.The children shall spend time with the Father at all times as agreed between the parties in writing but from each alternate Friday afterschool to Monday morning before school, or Tuesday if the Monday is a public holiday or student free day.
Communication:
5.The party with whom the children are not currently spending time is at liberty to communicate with the children via Facetime (“FT”) or Skype each Wednesday and for that purpose:
a.the party who does not have the care of the children on that day shall initiate the FT/Skype call between 5.30pm and 5.45pm;
b.the party who has the care of the children on that day shall:
i.ensure that the children are available to receive the FT/Skype call;
ii.ensure that the children have privacy during the conversation and are in a quiet environment;
iii.assist X to ensure that she is able to hear and communicate during the call;
iv.ensure the volume is turned up to a level the children can hear;
c.for the avoidance of doubt, any member of each party’s household may participate in these calls.
6.The children shall be at liberty to otherwise communicate with either party at all reasonable times and both parties shall ensure the children have access to a device to enable such communication.
Education:
7.X is to attend Suburb B Special School.
8.Y is to attend Suburb C Primary School.
9.Both parties are restrained from changing the children’s school enrolments without the prior written consent of the other party.
10.Both parties are at liberty to attend the children’s schools for any school activity or sporting event.
11.Each party is hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
12.X’s disability parking permit is to be passed between parties at each changeover.
13.The parties shall:
a.Keep the other party informed at all times of their home address, email address, mobile and landline contact telephone numbers and inform the other parent within twenty-four (24) hours of any
b.Keep the other party informed of the names and addresses of any treating medical or other health practitioner(s) who treat the children and authorise those practitioners/specialists to provide the other party with information about the children.
14.Both parties shall ensure that they nominate (as the emergency contact) the other party for the children’s schools, after school care and any necessary health contact.
15.Both parties are at liberty to communicate to the other party in writing by email (save in emergent circumstances as outlined at Order 16 below) and the following conditions will apply when the parties correspond via email:
a.The Father will email the Mother only at [omitted];
b.The Mother will email the Father only at [omitted];
c.The parties will ensure all communication is child focused and respectful;
d.Both parties will ensure that correspondence is sent to the other party no more than twice weekly informing the other party in relation to the children’s welfare;
e.If correspondence is sent in accordance with these Orders, it will be acknowledged by the other party within 48 hours;
f.If the above email addresses change, then the parties will comply with paragraph 17(a) of these Orders.
16.In the event that either child requires significant medical or dental treatment or hospital treatment, the party then caring for the children will immediately inform the other party by telephone and where the other party is not able to be contacted by telephone after all reasonable attempts have been made, will email or send an SMS message to the other party.
17.That pursuant to Section 68B of the Family Law Act 1975 an injunction issue restraining the parties from video or voice recording the other party and/or the children at any changeover or any telephonic conversation between the children and other party.
Authority:
18.Each party is hereby authorised to obtain from the children’s medical and allied health practitioners’ information as to the children’s progress and appointments including but not limited to progress notes and reports, and shall be authorised to discuss the children’s condition and progress with their medical and allied health practitioners.
Non denigration:
19.During the time the children are with either party, that party shall:
a.respect the privacy of the other party, that party’s partner and family, and refrain from questioning the children about the personal life of the other party, that party’s partner and their family;
b.speak of the other party, that party’s partner, and the family respectfully;
c.refrain from denigrating or insulting the other party, that party’s partner and their family in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other party, that party’s partner and their family in the hearing or presence of the children;
d.Not denigrate the other party, that party’s partner and/or family to any third party including school teachers, school personnel, health practitioners or any other interested third party;
e.refrain from discussing with the children any issue relating to the dispute between the parties or show the children any documents connected with the dispute; and
f.encourage and not undermine each child’s relationship with the other party.
Special Days:
20.The children shall spend time with the Father from 9am to 4pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended.
21.The children spend time with the Mother from 9am to 4pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended.
22.The children shall spend time with the Father on the Father’s birthday as follows:
a.if falling on a school day, from after school to 6.30 pm that day; and
b.if falling on a non-school day, from 9am to 4pm that day.
23.The children shall spend time with the Mother on the Mother’s birthday as follows:
a.if falling on a school day, from after school to 6.30 pm that day; and
b.if falling on a non-school day, from 9am to 4pm that day.
24.The children shall spend time with the parties on the children’s birthdays as follows:
a.if falling on a school day, with the party whose care they would not ordinarily be in on the night of their birthday, from 3pm to 6pm;
b.if falling on a non-school day, with the party whose care they would not ordinarily be in on the night of their birthday, from midday to 5pm; and
c.that any provision for time that is inconsistent with this paragraph be suspended.
25.Both parties shall advise the other party as soon as practicable in relation to:
a.Any significant illness, accident or injury suffered by the children;
b.Any medication the children have been prescribed and the dosage required.
26.The Father is at liberty to request his contact details be listed on the children’s records for their school, NDIS, hospital, and treating medical practitioners and allied health practitioners as the second priority contact.
27.Within 14 days of a written request with the accompanying documentation being made by a party to the other party, the other party shall sign and return to the requesting party an application for an Australian Passport for the children.
28.The cost of obtaining and renewing the children’s passports shall be shared equally between the parties.
29.Unless otherwise agreed between the parties in writing, each party is at liberty to travel with the children overseas during the time that the children spend with them pursuant to these Orders, provided that not less than twelve weeks before the commencement of any such intended overseas travel the travelling party shall deliver to the other party notice of their intended travel and a full itinerary of the proposed travel in writing, including but not limited to:
a.A copy of the return airline tickets or e-ticket confirmation showing the date of departure from Australia and return to Australia for the children and travelling party;
b.A contact telephone number for the travelling party when they are travelling;
c.The names, addresses and telephone contact details of where the children will be staying;
d.Confirmation that the advice provided by the Commonwealth Government’s Department of Foreign Affairs and Trade (presently available on the website for the destination does not recommend a Level 3 “Reconsider your need to travel” or a Level 4 “Do not travel”.
30.Neither party is permitted to travel with the children to a country that is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction.
31.Upon provision of proper notice, the relevant party shall release the children’s passports to the other party.
32.During any overseas holiday, the travelling party shall arrange for the children to FT/Skype the other party on at least one occasion each week.
33.In the event of any dispute as to the interpretation, implementation or enforcement of this Order (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute.
NDIS for X:
34.The Father is hereby at liberty:
a.to buy consumables for X whilst she is in his care and seek reimbursements from the NDIS plan manager;
b.to communicate with and attend upon all appointments relating to X, subject to the discretion of the any NDIS medical or service provider;
c.to attend appointments with X’s regular therapist(s) when X is in the Father’s care, subject to the therapist’s direction and costings;
d.to engage a respite services provider that is compliant with all NDIS codes, regulations, funding and services, such service o be capped at $1,500 per year.
Medical Information:
35.Both parties are hereby authorised to obtain from the children’s medical and allied health practitioners, information as to the children’s progress and appointments including but not limited to progress notes and reports, and shall be authorised to discuss the children’s condition and progress with their medical and allied health practitioners.
36.Both parties shall keep the other party informed of the names and addresses of any treating medical and allied health practitioners who treat the children and authorise those practitioners to provide the other parent with information about the children.
37.Both parties shall advise the other party as soon as practicable in relation to:
a.any significant illness, accident or injury suffered by the children;
b.any medication the children have been prescribed and the dosage required.
Ancillary:
38.The parties shall permit the children to take any item they choose to the other party’s household, and the other party shall be responsible for ensuring that item is kept in good condition and returned to the other party at the next changeover.
THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:
School Holidays:
39.The Father's time with the children will (re)commence on the first weekend of the school term, if the children are with the Mother for the last week of the school holiday period and the second weekend, if the children are with the Father for the last week of the school holiday period.
40.The children shall spend time with the parties during the Queensland gazetted school holidays as follows:
a.with the Mother for the first half of the school holiday period in odd numbered years and with the Father for the second half in odd numbered years;
b.with the Father for the first half of the school holiday period in even numbered years and with the Mother for the second half in even numbered years.
41.The Father is at liberty to spend an additional 7 days with the children during a gazetted school holiday period of his nomination, and shall provide the Mother with 2 months’ notice, provided this time does not coincide with Christmas Day or Easter long weekend.
42.The party who does not have the children in their care on Christmas Day is at liberty to FT/Skype the children between 5.30pm and 5.45pm.
Changeovers:
43.Unless otherwise agreed between the parties in writing, changeovers are to take place, with the Father to do all of the travelling, in the following terms:
a.On school days the Father is collect the children from school on Friday and deliver the children to their respective schools on Monday; and
b.On non-school days the Father is to collect the children from and return the children to Shopping Centre D McDonalds.
c.Each party is able to authorise a third-party agent to undertake changeovers on their behalf, provided that 24 hours’ notice is given as to the identity of the agent to the other party.
Further NDIS Order:
44.The Mother shall be responsible for decisions relating to provisions of NDIS support and funding in conjunction with a plan-managed NDIS fund, save and except for the Mother self-managing the consumables aspect of that NDIS funding.
Independent Children’s Lawyer:
45.The Independent Children’s Lawyer is hereby discharged within 30 days from the date of these Orders.
Other Orders:
46.All outstanding Applications be removed from the pending cases list and the matter otherwise be finalised.
NOTATION:
1.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
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 Bakken & Bakken has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
JUDGE COPE
BACKGROUND
The matter before the Court today is in relation to the arrangements for two children; that is X Bakken (“X”), born in 2011 who is 10 years of age, and Y Bakken (“Y”), born in 2014 and he is seven years of age.
The eldest child X has various diagnoses including autism spectrum disorder, intellectual impairment disability, ADHD, absence seizures, severe speech apraxia, fine and gross motor difficulties and hypotonia. The undisputed evidence is that X is largely non-verbal – and I say largely simply because there are some words – and attends a special needs school to assist with her complex issues. X is also part of the NDIS scheme which is one of the issues remaining for the Court today.
The mother has been the primary carer for both children since separation occurred in 2015 some six years ago. These two parents have been in dispute about the arrangements for X and Y for many years with the father first filing an Initiating Application in 2017.
Final Consent Parenting Orders were then made in 8 May 2018, however, a further Initiating Application was filed by the father very soon after on 21 December 2018 following the mother’s decision to relocate to the City E sand to change the children’s schools and service providers in doing so.
As the father lived in City F, this also had an impact on the father’s time spending arrangements. The parties have, however, today reached consent orders about the majority of issues in terms of the draft handed up by the Independent Children’s Lawyer (“ICL”) and the parties.
There is largely agreement as follows and I will just go through that now with the parties:-
(a)The agreement is in relation to parental responsibility, orders 1 and 2;
(b)live with and spend time with, the proposed orders 3 and 4;
(c)school holidays were not agreed;
(d)the communication paragraphs 9 and 10 are in agreement;
(e)the education issues which is 11 through to 21 are also in agreement;
(f)the authority at 22 is in agreement;
(g)the non-denigration clause is in agreement with an extension to prevent non-denigration to teachers, school teachers, health service providers and the like;
(h)Special days agreed. That’s orders 24 through to, over another page, 37;
(i)the issue of NDIS for X at 38 is not in agreement. That is one of the issues further to be discussed.
(j)Medical information at items 40 through to 42 are in agreement; and
(k)the ancillary order at 43 is in agreement.
So we have here a five page document consisting of 43 clauses, most of which is in agreement between the parties.
I am familiar with the file having read the material. I have also heard evidence from the parties today in relation to the outstanding issues and I've had submissions from Counsel. Given all those matters, I'm satisfied that those Orders that I've just addressed with the parties are in the best interests of the children and I therefore make consent orders in those terms marked with the letter A and signed by me and dated 21 September 2021.
ISSUES & PROPOSALS
That leaves outstanding the following issues:-
(a)the changeover arrangements;
(b)the school holiday arrangements; and
(c)the clause in relation to NDIS management for X.
The competing proposals before me in relation to changeovers are as follows:-
(a)In the amended Initiating Application filed on 29 March at his proposed order 16, the father sought Orders that the mother deliver the children to him at his home at the commencement of his time and he return them to her at the conclusion of time at Big W in Shopping Centre E.
(b)In the amended Response filed on 21 February 2021 at her proposed order 5, the mother’s position is that handovers take place at the F service station at Suburb G.
(c)The ICL proposes that the father collect the children from and return the children to school for the purposes of his weekend time with the children and also his holiday time, though, of course, there would also need to be an amendment in relation to the midpoint.
In relation to school holidays:-
(a)The father seeks that he always has the second half of the school holidays. This is in part, on his evidence, to give some certainty to the children and to give them some routine, but he also acknowledges that it fits in fortuitously with his work commitments which are generally busier in that first half of the school holidays, noting that the father is an entertainer who works with children.
(b)The mother seeks the usual alternating of first and second half of the school holidays. Her evidence is that there's no reason to change the usual arrangements and that each half has its own characteristics.
(c)The ICL supports the mother’s position.
The third issue is NDIS:-
(a)The father seeks that in that clause at – I think it was 38 – the words ‘plan manager’ be included somewhere in those Orders. The father’s position is that he doesn’t want the mother to be solely responsible for the management of the NDIS and his evidence was reflecting some lack of trust there.
(b)The mother had no objections to the proposal of the Independent Children's Lawyer but wants the word “self” included in there somewhere. The mother doesn’t seek to manage the whole NDIS plan, she simply wants to manage the consumables. She says that will allow her to buy small items such as lunchboxes and snuggies, I think the word was, and she was clear in her evidence that she does not want the responsibility of managing the entirety of the NDIS grant.
(c)The ICL supports the mother’s compromised position.
BACKGROUND
The matter has a long history. It has been in and out of Court and it has become more and more toxic as time goes by. The evidence from all was pretty clear that things have got worse rather than better. I'm not going to trawl through the whole of the history of this matter. I note that the parties have each prepared a detailed chronology and I thank them because it was of enormous assistance to me. For the purposes of these reasons, I will adopt the chronology prepared by the Independent Children's Lawyer as part of my reasons.
Unfortunately, despite having had the benefit of a Child Inclusive Conference Memorandum and three Family Reports in these proceedings and at least one mediation that I'm aware of, plus all of yesterday when the matter should have been in Court, unfortunately, complete agreement just simply wasn’t possible for this family and this Court has been left to decide those last three issues.
MATERIAL EVIDENCE
I have had the benefit of seeing the parties in the witness box. One usually wouldn’t do so for the purposes of a changeover decision, but given X’s special needs and the concerns about the impact of travel on that, that was a necessary step to take.
Both parties gave evidence in their Affidavit material and again in the witness box and, in particular, that was about X, her anxiety and her need for routine and structure and the issues regarding handovers.
In particular regarding X, I took into account in the father’s Affidavit of 5 March 2021, paragraph 7 and paragraph 41 onwards and Counsel referred me to paragraphs 27 and 28 of his Affidavit of 9 August 2021.
I also read the mother’s Affidavit material including, in particular, paragraphs 37, 108 and 109 and in her more recent Affidavit of 9 August 2021, paragraphs 2 to 6. Again, I'm not going to read all of that into the record.
The Family Report of 14 September 2021 was particularly helpful in addressing the issue of the changeovers. Paragraph 32 to 48 addressed many of the issues with changeover under the heading X at 65 and 66, Y at 70 and 71, and in the conclusion section at paragraphs 81 and 89. Some of those provisions in the Family Report are very persuasive and I've paid a great deal of attention to them.
When we’re talking about the impact of travel and changes for X, I saw at the Family Report under the heading of “X” that the report writer spoke about X’s anxiety saying her behaviour when she's anxious is distressing. She cries, attempts to sign what she wants, and is fretful in her physical behaviour. It appeared to be the uncertainty of the environment which was upsetting her and she calms slightly when she was able to settle with some toys.
At paragraph 64, on the second occasion for interviews, X was much better although it was clear that she had been crying copiously before she arrived at the office. She nonetheless was far more settled than on the earlier occasion.
At paragraph 65, the report writer noted that the handover of the children between the parents occurred without undue difficulty. There are a couple of minutes either way in which X was anxious but once she saw her father and he approached her with things that they obviously have a habit of doing together, she began to calm more quickly. Y, of course, had no difficulty.
And I do like to mention Y here because he does get a little lost in the way and I know both parents work very hard to make sure that he doesn’t. But necessity means that X, with her special needs, does take some of the focus away from Y, particularly in this decision-making.
Whilst these parents clearly love their children very much as I said before, we seem to have lost sight of their best interests, particularly when I was traversing the communications between the parents. That communication was, at times, obstructive, at times difficult to even understand what each was trying to tell the other, and at times, simply confusing. So I do urge, again, that the parents sit down and really think about the way that they communicate with each other for the benefit of the children.
The mother’s evidence was very useful. She agreed that changeovers had not been an issue until November 2020. She attributed that change to the father moving into his current home which was, of course, disputed by the father in his evidence. That, however, did not accord also with X’s onset of anxiety and vomiting when catching the school bus which was then alleviated by the mother driving her to school.
The mother advised the Court that when travelling to handovers, X was vomiting and that Y had his head out the window saying he could not take it anymore.
This was also the evidence that was provided to the Family Report writer. The mother spoke of the steps she took to deal with that, to having vomit bags, trying to adjust diet and other factors to help X cope with her anxiety.
The mother acknowledged that antidepressants have been recommended by the paediatrician, but she was reluctant to trial that at this stage without trialling other options.
The mother also acknowledged that her own anxiety was elevated at those times and while she didn’t speak negatively to the children about their father, she acknowledged that the children would no doubt pick up on her own anxiety and that would be a factor.
The mother’s evidence regarding X’s anxiety and distress and its impact on herself and Y was compelling. When questioned about the issues, the mother became elevated and teary. This Court has no doubt that those are very stressful times for not only the mother but also for X and for Y travelling to the handovers as she described. I accept that the experience of driving the children to those handovers is as it was described by the mother.
In relation to the holiday time, the mother wants to alternate the time talking about the children being different in different phases of the holidays. Again, I found the mother’s evidence to be – compelling is probably the wrong word - but to be very straightforward, very honest and I accepted her evidence in relation to those matters.
As regards the NDIS, the mother gave clear evidence that she didn’t want complete responsibility, that she's not seeking that and that she will accept Orders framed in those terms.
In relation to the father’s evidence, he said that whilst X suffered anxiety, in his experience, it wasn’t to the extreme that the mother had suffered.
The father talked about the changeover experience for him and he spoke of travelling with his children as a positive experience. The father is an entertainer so when he and the children travel, they sing songs and the children have a wonderful time in the car travelling with him. He talked of X asking him for more.
His evidence was that there was no anxiety for X when he was driving to and from the City E.
The father was somewhat impassioned when he was talking about his work. At the moment he is under a lot of stress, he has got a deadline looming before Christmas. He described himself as very busy, particularly at the current time.
The father, however, is a self-employed entertainer and he can set the hours that he works. He acknowledged that in his evidence. So whilst he gave evidence about the current pressures, he also talked of assistance from his parents and he talked about that if Orders were made - he gave evidence that if Orders were made that he would do the travel that he would comply with them. As with the mother I found the father's evidence compelling. I accept his evidence that the children are happy and fulfilled and travel well when they are in his car with him.
In relation to the father's evidence about the Christmas holiday arrangements, it is apparent to the Court that that is more to suit the father's convenience than to suit the convenience of the children. There was more passion when the father talked about his work really than about the convenience of the children in those arrangements.
As regards to the NDIS funding, I accept that the father and the mother have very little trust between them, and that the father and the mother both want the NDIS to be managed by a plan manager, but that the mother wants to have some ability to make the arrangements herself for the smaller items - the consumables.
THE LAW
The law governing the Court’s determination in a parenting matter is set out in Part VII of the Family Law Act 1975 (“the Act”).
Section 65D of the Act, subject to s 61DA (“the presumption of equal shared parental responsibility”) and s 65DAB (“parenting plans”), gives the Court the power to make a “parenting order”. A “parenting order” is defined by s 64B of the Act.
The objects and principles are set out in s 60B of the Act and any consideration of a parenting matter is decided with those firmly in mind.
In deciding whether to make a particular parenting order, s 60CA requires the Court to have regard to the best interests of the children as the paramount consideration.
In determining what is in children’s best interests the Court must consider the matters set out in s.60CC(2), the “primary considerations”, and s.60CC(3), the “additional considerations”.
There are two primary considerations. The first is the benefit to the children of having a meaningful relationship with both their parents and the second is the need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Whilst there are two primary considerations, the need to protect children fro harm will always take precedence.
The “additional considerations” are set out in s.60CC(3) and reviewed later in detail in these reasons.
The presumption in section 61DA is that it is in the best interests of a child for the parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the child. Further the presumption is rebutted where there is evidence that satisfies the Court that it would not be in the best interests of the child to make such an order.
In accordance with s 65DAC, parents with equal shared parental responsibility are required to consult with each other and make a genuine effort to come to a joint decision about “major long-term issues”.
“Major long-term issues” include the children’s names, matters relating to their education, religious and cultural upbringing and changes to children’s living arrangements, where such changes make it significantly more difficult for the children to spend time with a parent.
The making of an order for equal shared parental responsibility engages the statutory pathway set out in s 65DAA of the Act: Goode & Goode (2006) FLC 93-286
Where the presumption does not apply or is rebutted, the Court must still draft Orders that are in the best interests of the child given the particular facts of the case. Where however the presumption applies, s 65DAA (5) provides that the Court must determine whether it is in the child’s best interests and is reasonably practicable to make an Order for equal time.
In summary, there is a legislative pathway that I follow when I talk about best interests, and that legislative pathway is set out in the main at section 60CC. I do not intend to trawl through all of that for the purposes of today, given that the parties have agreed about the living arrangements and parental responsibility. Save and except for that NDIS issue, it is accepted that it is in the best interests of these children to have a meaningful relationship with both parents, and that there is no risk of significant harm to the children in the care of either of these parents.
COMPLIANCE WITH COURT ORDERS
I note that there has been a lack of compliance with Court Orders. I have spoken to the parties about this previously during the course of these proceedings.
Court Orders are not a guideline or a wish list. Court Orders are enforceable. By agreeing to the Orders today that you have agreed to, you are bound by those Orders, and when I make these Orders in relation to changeovers, holidays and NDIS, you will be bound by those Orders as well.
You must take those Orders seriously. You must comply with those Orders. And you must comply with the intention and the spirit of the Orders. Do not go looking for loopholes; go looking for better ways to communicate.
APPLYING THE LAW
Now, applying the law to all of that evidence that I read and the evidence that I heard from the parties, there is no dispute that these children need a meaningful relationship with both parents, and that this agreed and it is going to occur.
Arguably, however, the anxiety that X is experiencing in travelling to spend time with her father may damage her meaningful relationship with her father. If a child is spending all of or part of or the majority of a trip of an hour or more vomiting in the car, then that is not something that is going to make her look forward to spending time with her father.
Whilst I do not like to talk about it falling into the category of protecting children from harm, there is a psychological harm to a child who is being ill who is being told that she is going to go somewhere and she is going to be ill.
I heard Mr Berghofer's submissions that this may all change once these proceedings are over and done with and these parties are able to move on with their lives and put it all behind them. Unfortunately, that is only speculation. I can only deal with the evidence as it stands before me now, and I have accepted the mother's evidence and I am satisfied that X is experiencing terrible trauma at the moment when passing between households.
I took you before to the section of the Family Report about X and I have already read that out to you. I also wanted to take the parents to 81 and 85.
I often say to people when I look at Family Reports: read it and re-read it and read it again because a Family Report is not a criticism of you; it is a pathway forward to be the best possible parents you can be for your children, so you need to read it thinking that.
But at paragraph 81, the report writer said:
What emerged in this assessment and remains a source of contention between the parents is the management of X's adjustments to change which can become highly elevated in unfamiliar situations. Although the handover of X for this assessment was managed without the parents having contact with one another, and respectively they each presented as competent in how to manage X at those times, it has been less perfect in their direct handovers, and there has been added complications due to changes to location, times and arguments over everything.
At paragraph 82:
This relates to the management of X's needs contemporaneously. However, there is also a collective failure to meet her secondary needs in compassing decisions about her care, flexibility and commitment to her relationship with the other parent. Naturally this applies to Y also, but the onus on X is that her needs require a higher level of cooperation and rapport.
At paragraph 83 “This is lacking here. The absence of which leaves the parents in increasing spirals of conflict in addition to the underlying stress of caring for a child of such high needs.”
At paragraph 84:
The relatively short history since the earlier order by this Court outlines this problem. Ms Bakken relocated unilaterally changing the children's school after which new arrangements were made and then modified by mediation. There was a lapse in Mr Bakken's time with the children then and a further one when there were problems with handover.
"Mr Bakken", at paragraph 85:
…either could not or would not concede to the change in locations of handover, and Ms Bakken became less amenable due to her claim that X's anxiety was unmanageable given the circumstances of the handover.
Irrespective of the inconvenience of the handover, I think that any child might be anxious between parents at such odds with each other. There is not one person who bears all the responsibility for finding yourselves in Court today, so just keep that in mind when you are moving forward.
S 60CC (2) PRIMARY CONSIDERATIONS
My conclusions in relation to the primary considerations are that it is important that X and Y have a meaning relationship with both of the parents, and that if we continue to do changeovers where both parents are travelling, that there is a risk of harm to X and indirectly also to Y because of X's distress and the physical ramifications of that.
S60CC(3) ADDITIONAL CONSIDERATIONS
In relation to the additional considerations, I am going to briefly touch on them, but X is, of course, non-verbal so her views are not expressed and do not carry any weight, and, of course, Y is much too young.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
I know that both parents have done the very best that they can. I accept that these are loving, devoted, committed parents. You have each done a lot of work. The mother has done all the hands-on work, and that is not to criticism of the father, it is simply the burden that a primary carer carries, and when you are also the primary carer of a disabled child, that burden is enormous.
The father has, however, stepped up to the mark on other occasions. He has done research and he has tried to find people who can help X as well.
You each need to be able to communicate about those things and try and work together to make sure that X has the best of both of you.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
I do not intend to make any comment about that. As I said before, we have a disabled child here and both of you are doing the best that you can do.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
My view is that there needs to be a change to the travel arrangements, and that change will be that the father will need to do all of the travel. When the father does the travel for the purposes of handovers, X has a glorious time. On the father's own evidence, it is a positive experience for her. On the mother's evidence, the travel for X in her care is not a good time; it is terrible experience, not only for X but for Y and for the mother.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied you each have full capacity to give your daughter and your son everything that they could possibly need.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
There are no issues there that I wish to address.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family.
I am aware that there was a family violence Order, and the circumstances of making that order. The fact that the two of you worked together today to reach agreement on the majority of issues means that you have, I trust, moved past those issues. Do look back on that, though, and recall how you must not treat each other. How important it is to be respectful.
CONCLUSION
In all of those circumstances, I am satisfied that I need to make Orders which will bring this matter to a conclusion finally, and the only way forward I can see for that is to make Orders in terms of the recommendations of the ICL which are in the main supported by the mother.
I make Orders that changeovers take place; the father to do all of the travelling. Where possible, changeovers will take place from the school. That is on a school day the father is to collect the children from the school and on a non-school, the location nominated being Shopping Centre D McDonald's on a non-school day.
Also I will make a note in that Order that the parties may use an agent to do handovers, so long as you notify each other, because I do understand that the father has been assisted by his parents before, and no doubt his partner may also be involved at some point.
And on the mother's side I am not sure whether there would be family or the like.
But certainly, if there's a use of an agent it would be on 24 hours’ notice that somebody else is doing the handover so that children - and in particular X - knows who it is going to be on 24 hours’ notice.
In relation to the Christmas holidays, I find that Orders should be made in terms of the proposal of the ICL for the alternating of the Christmas holidays, so I will make Orders in terms of Order 5, 6, 7 and 8 of the draft provided by the Independent Children's Lawyer.
In relation to the NDIS Order, which is order 38, the Order I will make is that the mother shall be responsible for decisions relating to provisions for NDIS support and funding in conjunction with a plan managed NDIS, and save and except that she will self-manage the consumables aspect of that funding.
I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of Judge Cope delivered on 21 September 2021. Associate:
Dated: 27 October 2021
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