Dyer & Kaeser

[2021] FCCA 2171

FEDERAL CIRCUIT COURT OF AUSTRALIA

Dyer & Kaeser [2021] FCCA 2171

File number:	DNC 117 of 2021
Judgment of:	JUDGE YOUNG
Date of judgment:	31 August 2021
Catchwords:	FAMILY LAW – concerning two children who are eleven and nine years old – whether the children should spend time with the father in Town B or City C – where the children live with the mother in Town B – where the father proposes the children spend time with him in City C – where the mother proposes the children spend time with the father in Town B – where the mother is concerned the father would fail to return the children if the children spend time with him in City C – where there is no evidence the father has ever failed to comply with Court orders – where the Court is satisfied the father’s proposal is reasonable – orders made accordingly.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	15
Date of hearing:	31 August 2021
Place:	Darwin
Solicitor for the Applicant:	Ms Bowen of Bowen Lawyers
Solicitor for the Respondent:	Ms Kobelt of Ward Keller

ORDERS

DNC 117 of 2021

BETWEEN:

MR DYER

Applicant

AND:

MS KAESER

Respondent

ORDER MADE BY:	JUDGE YOUNG
DATE OF ORDER:	31 AUGUST 2021

THE COURT ORDERS BY CONSENT THAT:

1.That the children X born in 2008, Y born in 2010 and Z born in 2012 live with the mother.

2.That X spend time with the father in accordance with her wishes.

3.That X be permitted to communicate with the father by electronic means at any time.

4.That when either parent is spending time with Y and Z (“the boys”) during school holidays, that parent shall facilitate telephone contact with the boys and the parent they are not spending time with as follows:

(a)On Tuesday at 4:00pm;

(b)On Thursday at 4:00pm;

(c)On Sunday at 9:00am; and

(d)At any other times as requested by the boys.

5.That both parents are restrained from removing the children from the Northern Territory of Australia without prior written consent from the other party or a court order.

6.The father shall spend time with Z and Y at times as agreed to between the parties and in the absence of agreement as follows:

(a)First half of 2021/2022 Christmas NT Gazetted school holidays and each alternate year thereafter with the time not to commence prior to the last day of the school term;

(b)Second half of 2022/2023 Christmas NT Gazetted school holidays and each alternate year thereafter, with the time not to exceed the first day of school term.

7.Should both parents be in the same location on special occasions, the children shall spend the following times with their father;

(a)On Children’s birthdays from after school until 8 am the following day on the school day or Friday, and on the non-school day from 10 am to 2 pm;

(b)On Father’s Day from 9 am until commencement of school the following day;

(c)On Christmas day from 2 pm until 2 pm Boxing Day.

COMMUNICATION

8.That unless otherwise agreed to between the parties, or in the event of emergencies concerning the children, communication between the parties shall occur primarily via emails and/or SMS text messages, and be limited to issues pertaining to the children.

9.That the parties shall respond to the other’s communication within 6 hours of receiving the communication.

EDUCATION

10.That each parent shall be at liberty to obtain all and any information about the children’s education from the schools the children are enrolled at.

11.That each parent shall be entitled to attend school or extracurricular events that the parents are ordinarily invited to, and both parents shall keep each other informed of such events.

MEDICAL ISSUES

12.That each parent shall be at liberty to obtain all and any information about the children’s health and wellbeing from any treating practitioners, and be at liberty to attend any appointments the children are booked to attend, with the parent booking the appointment informing the other parent of the time and location within a reasonable time to enable the other parent to attend.

13.That in the event that any of the children requires medical treatment, the parent caring for the child is to immediately advise the other parent via phone, or SMS message, within 24 hours of the treatment being received.

NOTICES

14.That each parent shall keep each other informed of their current residential addresses, telephone numbers, email and Skype addresses, and of any changes within 48 hours from the changes occurring.

15.That each parent shall be at liberty to receive information/records from any carer, teachers, hospital, childcare institution, and any social, sporting or recreational organisations with respect to the children.

INJUNCTIONS

16.That injunction issue restraining each parent from the following;

(a)Denigrating the other parent or the parent’s partner or members of that parent’s family in the presence of or within the hearing of the children or any of them and each parent remove the children from the hearing of anyone else who may be denigrating the other parent or that parent’s partner or family;

(b)Exposing the children to family violence;

(c)Consuming alcohol to excess no less than 12 hours prior to and during the time the children are in the respective parent’s care;

(d)Exposing the children to passive smoking.

AND IT IS ORDERED UNTIL FURTHER ORDER:

17.That the children spend time with the father in City C for the first half of the Term 3 Northern Territory Gazetted School holidays from 25 September 2021 until 2 October 2021;

18.That the children to spend 7 days with the father over the Easter school holidays in 2022 in Brisbane with the period to be nominated by the father no less than 60 days in advance.

19.That there be no order as to payment of airfares.

20.That pursuant to s 68L(2) of the Family Law Act 1975, the interests of the children X born in 2008, Y born in 2010 and Z born in 2012 be independently represented by a lawyer and it is requested that Northern Territory Legal Aid Commission make arrangements as soon as practicable to secure that independent representation of the children’s  interests.

21.That forthwith upon appointment by the said Northern Territory Legal Aid Commission or otherwise the Independent Children’s Lawyer file a Notice of Address for Service.

22.That upon filing a Notice of Address for Service, the Independent Children’s Lawyer have leave to inspect and / or copy any material in accordance with Rule 15A.13 of the Federal Circuit Court Rules 2001 subpoenaed by the parties and released by the Court up to that date.

23.That within seven (7) days of notification of such appointment each party provide to the Independent Children’s Lawyer copies of all relevant documents relied upon by that party.

24.That the parties do all such things as are necessary to enrol and complete the ‘Kids Are First’ parenting program or the D Families ‘Post Separation Co-Operative Parenting Program’ and provide a proof of completion certificate to the other parent.

25.That the father do all things necessary to enrol and complete the ‘Tuning into Teens’ parenting Course and provide a proof of completion certificate to the other parent

26.That pursuant to section 62G(2) of the Family Law Act 1975, the parties and the child/ren of the relationship X born in 2008, Y born in 2010 and Z born in 2012 attend upon a family consultant nominated by the Regional Coordinator Child Dispute Services of the Federal Circuit Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a family report, such report to be released by 28 February  2022.

27.That the family report to deal with the following matters:

(a)any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

(b)the matters set out in sections 60CC, 61DA and 65DAA of the Family Law Act 1975; and

(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

28.That the solicitors for the parties forward copies of all documents filed with the Court to the nominated report writer in accordance with the directions of the Case Coordinator Child Dispute Services.

29.That the parties are to confirm their attendance to the Case Co-ordinator Child Dispute Services by email at [email protected] or alternately call 1300 352 000 fourteen days prior to the date of the interview and in the event such confirmation is not received the interviews will be cancelled.

30.That upon the Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.

31.That unless a party objects, in writing, within 14 days of the date of releasing the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child/ren to whom these proceedings relate:

(a)a Children’s Court;

(b)a child protection authority;

(c)a State or Territory legal aid authority; and

(d)a convener of any legal dispute resolution conference.

NOTING:

A.At the date on which a copy of the Report is be provided to any of those identified above it may not have been admitted into evidence and may be untested or, if admitted, may form only one part of the evidence in the proceedings.

B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

C.In the event a party to these proceedings objects to the release of the Family Report pursuant to Order 31 herein, they shall write to the Chambers of Judge Young seeking that the matter be listed on short notice for their objection to be heard.

32.That unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

33.That upon filing a notice to inspect the parties’ legal representatives be at liberty to inspect and copy all documents produced pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

34.That in the event any party (or the Independent Children’s Lawyer) in these proceedings wishes the family consultant to read any  material produced pursuant to subpoena  and any s.69ZW material then such documents shall be put before the Court by way of affidavit to be filed and served 7 days prior the interviews with the Family Consultant as follows:

(a)setting out short reasons for the inclusion of each set of documents, including reference to any current pleadings, and

(b)annexing such material as is considered relevant, with

(c)the affidavit to be paginated, indexed and exhibits tagged.

35.That the matter is adjourned to the trial call-over list on 29 April 2022 at 10.30am for further directions.

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 under the pseudonym Dyer & Kaeser is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT
Ex Tempore

JUDGE YOUNG:

1. This is an application concerning two children: Y who is 11 years old and Z who is 9 years old. This matter was listed for interim hearing in relation to what I was told was a dispute about whether the two children should spend time with their father in Town B or in Brisbane. 

2. There is also an older child, X, who is 13 years old, however, it is not contemplated that she would spend any time with her father other than in accordance with her wishes. According to the mother, X disclosed to her a sexual assault. X said that she did not want to see her father anymore because in the car he kept putting his hand up the top of her inside inner thigh.  She mentioned she always tried to push his hand away and he got angry at her. X is therefore not to be included, necessarily, in this dispute.

3. In relation to that disclosure, the mother’s affidavit filed relatively recently says that X was interviewed at the police station.  The Child Forensics Investigation Team in Darwin reviewed the allegations and the evidence. The mother says that she was informed on 23 August 2021 that the police would not take the matter any further because they did not consider the allegation amounted to an allegation of indecent assault.  That matter will, therefore, not proceed any further.  The agreed position is that there is no evidence, as far as the police are concerned, that that an indecent assault occurred. That being the case, there is no evidence to suggest that the children are at any risk from the father.

4. The father’s present proposal is that in the coming school holidays the time should be spent in City C for a week.  He asserted that there was no accommodation available in Town B.  However, that assertion was challenged and I was told by Ms Kobelt, counsel for the mother, that she received written confirmation today that there is accommodation available over the period of a week in Town B, starting on 25 September 2021.

5. I am satisfied that there probably is accommodation available in Town B. I am not satisfied that the argument advanced by the father about there not being accommodation is correct.  However, in my view, the issue which neither party has satisfactorily addressed is the recommendation in the Child Inclusive Conference Memorandum that the father’s contact for the next school holiday period occur in Town B. 

6. It is clear that Y wants to see more of his father and he has found his parents’ separation very difficult.  He wants to see more of his father and it makes him sad not to see his father.  The Family Consultant stated:

   Y said he would like to see his dad in Town B and said “I would like to talk to him more, too.”

   Z is recorded as saying “I have never been out of Town B.” He explained “I came here [Town B] when I was three and I’m nine now, that’s six years.” Z went on to say that he was worried to travel and he would like to see his dad “at home and go fishing and that”.

7. The mother told the Family Consultant that she proposed that the children’s time occur in Town B or Darwin.  I asked Ms Kobelt why the mother was concerned about that and she said that, in substance, she was concerned that the father would not return the children at the end of them spending time with him. I infer from that comment and the material in the mother’s affidavit that she is anxious about whether the children will return from their time with the father.

8. There is no evidence that the father has failed to comply with a court order in the past.  There is no evidence, that I can see, that would lead to a reasonable suspicion that the father would fail to comply with a relevant order.  It appears to me, at this stage, that the mother’s concern reflects her anxiety but nothing more.  It may be, and I do not know, that the children are reflecting the mother’s anxiety when they say they would like to see their father in Town B.  There is certainly nothing in the Memorandum to give any real background or context to what the children said about that.

9. I am not persuaded that it is inappropriate for the children to spend time with their father in City C for a week on the assumption, of course, that he bears the cost of it.  It occurs to me that if the children are to travel in future, the relatively short flight from Town B to City C, which is really not much further than from Town B to Darwin, is not an unreasonable proposal of the father. I see no reason why there should not be an order accordingly.

10. I do not propose to make any orders about who is to pay for the flights.  I was told that the mother has a very limited income.  I have no evidence whatsoever about the father’s income, however, I was told he was in receipt of unemployment benefits. How these parties are expected to pay for these two children to travel regularly between Town B and Brisbane is unclear to me.  In fact, there is no evidence before me that would satisfy me that that was a practical proposition at all.  However, the father says that he proposes to borrow from family members to spend the time with the children. 

11. I will make an order accordingly that in the next holiday period the father may spend the agreed time (25 September 2021 to 2 October 2021) in City C with the children.

12. As the matter is not likely to be reached for trial before the Christmas school holidays, I should make orders about the Christmas school holidays.  I propose to make orders that the children spend time with their father in Brisbane. 

13. I do not propose to make any order about the cost because the parties failed to come into the Court today armed with material to satisfy me that that was achievable.  I certainly do not propose at this stage to make an order that the mother share in the costs of the flights to Brisbane. 

14. I also going to make an order for an Independent Children’s Lawyer to be appointed.

15. Both parties are to attend the E Families “For the Kids” program or the D Families Queensland “Post-Separation Cooperative Parenting” program.  I think it is probably possible to do that online.  I suggest that the recommendation from the Family Consultant that the father consider attending a parenting course, such as “Tuning into Teens”, is a good idea.  The proposed orders of the parties did not dealt with this, however, that may be explained by the fact that the family consultant, in view of the allegation made by X, recommended the Memorandum not be released to the parties until the hearing today. This makes it a difficult for them to respond to the recommendations.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Young.

Associate:

Dated:       5 October 2021