Jaros & Calden (No 2)
[2023] FedCFamC2F 1173
•14 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jaros & Calden (No 2) [2023] FedCFamC2F 1173
File number(s): ADC 1152 of 2018 Judgment of: JUDGE JENKINS Date of judgment: 14 September 2023 Catchwords: FAMILY LAW – parenting – final hearing –whether consent orders are in the best interests of the child – equal shared parental responsibility – communication in the event of a serious injury or illness – child’s attendance on a psychologist – provision of family law documents to the child’s psychologist and/or other third parties – contribution to private school fees – release from - Harman undertaking – costs Legislation: Child Support Assessment Act 1989 (Cth) s 124
Family Law Act 1975 (Cth) s 61DA, s 117, s 121
Cases cited: Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street [2008] HCA 36
Jaros & Calden (No. 2) [2020] FCCA 2059
Springfield Nominees Pty Ltd and Others v Bridgelands Securities Ltd and Others (1992) 38 FCR 217
Division: Division 2 Family Law Number of paragraphs: 85 Date of last submission/s: 12 July 2023 Date of hearing: 12 – 13 July 2023 Place: Adelaide Counsel for the Applicant: Mr Anderson Solicitor for the Applicant: Resolve Divorce Lawyers Counsel for the Respondent: The Respondent appeared in person Counsel for the Independent Children's Lawyer: Mr Lewis Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 1152 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS JAROS
Applicant
AND: MR CALDEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
14 SEPTEMBER 2023
UPON NOTING:
A.The parties have been engaged in litigation concerning the children, X born in 2009 and Y born in 2011 (collectively, “the children”) since 21 March 2018.
B.The child Y continues to live with the parties pursuant to an equal time arrangement as provided for in the final order dated 12 February 2020.
C.The child, X, currently resides with the father and the mother asserts that X advised her that she is committed to spending time with the mother.
D.The mother wishes to protect both children, but in particular, X from exposure to ongoing litigation and conflict, and therefore has consented to an order which provides for X to live with and spend time with each of the parties pursuant to her wishes, despite her concerns for X’s welfare in the father’s care.
E.These orders were made by the consent of the parties save for orders 2, 14, 21, 22, 23, 27, 30 and 31.
THE COURT ORDERS THAT:
1.That all previous parenting orders in relation to the children be discharged.
2.The parties have equal shared parental responsibility for the care, welfare and development of the children X born in 2009 and Y born in 2011 (collectively, “the children”).
3.The child X shall live with and spend time with the mother and father from time to time subject to her wishes.
4.The child Y shall live with the parties on a week about basis with handover to take place at the commencement of school on a Monday, save and except during term time if a Monday is a public holiday or non-school day then handover will take place at the commencement of school on the following Tuesday (or 8:30am if a non-school day).
5.In respect of special occasions:
(a)At Christmas time:
(i)The children live with the father from 5:00pm on Christmas Eve until 5.00pm on Christmas Day each alternate year commencing 2023;
(ii)The children live with the mother from 5:00pm on Christmas Day until 5.00pm on Boxing Day each alternate year commencing 2023;
(iii)The children live with the mother from 5:00pm on Christmas Eve until 5.00pm on Christmas Day each alternate year commencing 2024;
(iv)The children live with the father from 5:00pm on Christmas Day until 5.00pm on Boxing Day each alternate year commencing 2024;
(b)At New Year:
(i)The children live with the father from 5:00pm on New Year’s Eve 2023 until 5:00pm on 2 January 2024 and each alternate year thereafter;
(ii)The children live with the mother from 5:00pm on New Year’s Eve 2024 until 5:00pm on 2 January 2025 and each alternate year thereafter;
(c)At Easter time:
(i)The children live with the father from the conclusion of school on the Thursday before Easter (or 5:00pm if a non-school day) until the commencement of school on the following Tuesday (or 8:30am if a non-school day) each alternate year commencing 2024;
(ii)The children live with the mother from the conclusion of school on the Thursday before Easter (or 5:00pm if a non-school day) until the commencement of school on the following Tuesday (or 8:30am if a non-school day) each alternate year commencing 2025;
(d)On each child’s birthday:
(i)On X’s birthday:
A.The children live with the father from 8:30am until 8:30am in 2024 and each alternate year thereafter;
B.The children live with the mother from 8:30am until 8:30am in 2025 and each alternate year thereafter;
(ii)On Y’s birthday:
A.The children live with the father from the conclusion of school (or 8:30am if a non-school day) until the commencement of school (or 8:30am if a non-school day) and each alternate year thereafter;
B.The children live with the mother from the conclusion of school (or 8:30am if a non-school day) until the commencement of school (or 8:30am if a non-school day) and each alternate year thereafter;
(e)On each parent’s birthday:
(i)On the mother’s birthday, the children live with the mother from the conclusion of school (or 8:30am if a non-school day) until the commencement of school (or 8:30am if a non-school day) each year;
(ii)On the father’s birthday, the children live with the father from the conclusion of school (or 8:30am if a non-school day) until the commencement of school (or 8:30am if a non-school day) each year.
(f)On Father’s Day each year, the children live with the father from 5.00pm on the night before Father’s Day until 5.00pm on Father’s Day.
(g)On Mother’s Day each year, the children live with the mother from 5pm on the night before Mother’s Day until 5.00pm on Mother’s Day.
6.In respect of paragraph 5 herein, the orders are subject to the wishes of the child, X, NOTING THAT the parties are to facilitate and genuinely encourage the child X spending time with the parties on these special occasions.
7.That the parties ensure the child X attends school on time each school day and remains for the entirety of the school day unless she is not fit to attend, in which case a medical certificate is to be provided to the school and the non-resident parent within seven (7) days.
8.That the parties be at liberty to attend school events to which parents are normally invited including but not limited to school excursions, classroom activities, presentations, concerts, graduations, ceremonies, sports days, swimming carnivals and school sporting events, provided that the non-resident parent provides no less than seven (7) days’ notice via SMS to the resident parent of their intention to attend such events, save and except that both parents are at liberty to attend school assemblies at which the children are receiving an award or performing and no notice is required to be given to the other parent.
9.That both parents are restrained and an injunction is granted restraining each of them from attending extra-curricular activities that are not school related extra-curricular activities engaged in by the children during the time the children are ordinarily in the care of the other parent in accordance with this order, save and except that each party is permitted to attend the children’s extra-curricular activities not related to school which occur when the children are in the care of the other parent in accordance with this Order if the event is a presentation, ceremony, concert, production or performance, or final (if it is a sporting activity), providing that no less than seven (7) days’ notice via SMS is provided to the resident parent of the intention to attend.
10.That all handovers that do not take place at school shall be at a location as agreed between the parties by SMS and in the event of no agreement as follows:
(a)At the commencement of the mother’s time the children shall be returned to the mother at her home by the father in accordance with the final Intervention Order;
(b)At the commencement of the father’s time the children shall be returned to the father at his home by the mother in accordance with the final Intervention Order.
11.That the parties shall each be permitted to receive and this Order shall stand as authority for each party to receive:
(a)All information that parents would usually receive from the children’s schools including but not limited to newsletters, notices and reports;
(b)All information that parents would usually receive from any medical practitioner or allied health practitioner that parents would usually receive; and
(c)All information that parents would usually receive from the children’s extra-curricular activities.
12.That each party shall be restrained and an injunction is granted restraining each of them from taking the children (or either of them) to a medical appointment or appointment with an allied health practitioner relating to a mental health issue including autism other than services provided by NDIS or a serious non-life threatening illness or injury, SAVE AND EXCEPT in the event of an emergency, without the express written consent of the other parent.
13.That each party shall seek the written consent from the other party no later than seven (7) days prior to any such appointment (save and except where an urgent appointment is required) and in such case the parent who has made the medical appointment or appointment with an allied health practitioner do inform the other as soon as is reasonably practicable of the details.
14.That each party shall keep each other informed about any serious illness or serious accident involving the children as soon as is reasonably practicable by both text message and by telephone call.
15.That each parent or their agent is to take the children to all agreed extracurricular activities in which the children are currently participating NOTING THAT historically, each party has taken the child/ren to separate activities in his/her time.
16.That each parent is restrained, and injunctions are hereby granted restraining them, and each of them, from enrolling either child in any extra-curricular activity that is to occur in the time that the said child is to spend time with the other parent, or otherwise impact on the other parent’s time with the child, SAVE AND EXCEPT in the event of an agreement in writing to do so.
17.The father and mother do ensure that both parents are listed as a parent and emergency contact on all the children’s enrolments to school, medical and allied health practitioners, sporting, and extracurricular activities and like organisations.
18.That the parties shall communicate in relation to the children by SMS text message:
(a)With the father to message the mother by SMS from time to time; and
(b)With the mother to message the father by SMS from time to time.
19.That the parties shall keep each other informed by SMS as to any change of their residential address or mobile telephone number.
20.That the parties shall each be restrained and an injunction is granted restraining each of them from:
(a)Denigrating the other to or in the presence of the children or permitting any other person to do so; or
(b)Discussing these proceedings to or in the presence of the children or permitting any other person to do so.
21.That the parties forthwith facilitate the attendance of the child, X, on Ms D, clinical psychologist, or her nominee on the first available date at such times and on such conditions as may be recommended by Ms D with the costs of X’s attendance on Ms D to be at the joint and equal expense of the parties after the deduction of any applicable Medicare rebate.
22.That each party shall be restrained and an injunction is granted restraining each of them from engaging the child X with a psychologist other than Ms D or her nominee, including but not limited to Ms E.
23.Prior to any first appointment, both parties shall be at liberty to provide Ms D or her nominee and the child X’s paediatrician, psychologist or counsellor, with a copy of the Family Assessment Reports authored by Ms B dated 1 October 2018; 10 October 2019; 29 July 2022; and 8 February 2023, and a copy of these orders.
24.That the parties shall each be permitted to receive and obtain information directly from the child X’s treating practitioners, and the National Disability Insurance scheme, or such allied health professionals including but not limited to general practitioner, paediatrician, occupational therapist, psychologist or speech pathologist.
25.That not before 10 May 2024, the parties facilitate X’s attendance on one paediatrician as nominated by Dr F of G Medical Centre for the purposes of an autism assessment with such assessment to be at the joint and equal expense of the parties.
26.Upon receipt of the autism assessment as referred to at paragraph 25 herein, the parties shall implement all and any recommendations.
27.That X continue to be enrolled and attend at H School on the basis that the father pay, and indemnify the mother against payment of, any and all compulsory tuition fees, charges, levies, school activities, excursions, camps or events at which attendance or participation is made compulsory by the school, uniforms, shoes, stationery, text books, electronic devices and other expenses including as they appear on the school invoice and other auspices of the school for X’s attendance at H School.
28.That the father notify X’s school that the mother is a parent and emergency contact and should receive information to which parents are ordinarily entitled to receive notwithstanding that the mother is not an enrolling parent for the purposes of the Child Support Assessment Act or liability for school fees.
29.That the parties be at liberty to provide this order to X’s school and/or Services Australia for the purposes of the assessment of child support.
30.The mother and her legal advisors be relieved of the implied undertaking provided by each of them to this Court with respect to the use of the following documents (“the Documents”) produced under compulsion in this proceeding (being ADC 1152 of 2018) (“the Proceedings”):
(a)The Family Assessment Reports authored by Ms B dated 1 October 2018, 10 October 2019, 29 July 2022, and 8 February 2023;
(b)The transcript and ex-tempore reasons of the argument on 16 March 2023; and
(c)Any orders and reasons for judgment.
31.That the relief from this undertaking referred to in Order 30 herein be limited to the use of the documents:
(a)In the Magistrates Court of South Australia Intervention Order proceedings and any other criminal proceedings involving the applicant and the children and South Australia Police (“SAPOL”); and
(b)Through provision to SAPOL in the context of investigation as referred to in paragraph 31(a) above.
32.Pursuant to sections 62B and 65DA of the Family Law Act 1975 (Cth) (as amended), 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 the document attached hereto.
33.That the appointment of the Independent Children’s Lawyer be discharged.
34.There be no order as to costs.
35.That all extant applications be otherwise dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE JENKINS
INTRODUCTION
This is a parenting matter concerning two children X, aged 14 years and Y, aged 12 years.
Final orders were made in February 2020 which provided for the parties to have equal shared parental responsibility for the children and for both children to live in an equal shared care arrangement. The parties do not seek to change those orders with respect to Y.
In regards to X, the parties now agree that she should live with and spend time with each of them in accordance with her own wishes.
The parties have also agreed to a myriad of other orders and restraints which shall be made by consent. These orders include X attending a paediatrician to be reassessed with respect to autism which is a matter in dispute between the parties.
The parties provided the Court with a colour coded set of orders which set out the remaining issues in dispute. During submissions this document was further refined and became Exhibit 1 in these proceedings.
The outstanding issues in dispute concern the following:
·Whether the parties should have equal shared parental responsibility for X;
·Whether the parties should be permitted to communicate by telephone in the event of a serious illness or serious accident involving the children, or just by text message;
·Whether X should attend upon psychologist Ms D;
·If so, whether Ms D should be provided with the family reports and/or a copy of these orders;
·Whether the family reports and a copy of these orders should be provided to other third parties including X’s allied health practitioners;
·Whether the mother should be required to contribute to X’s school fees at H School;
·Whether the mother should be released from the Harman undertaking in relation to the family reports in this matter, the transcript and the reasons for judgment from the interim hearing on 16 March 2023, this judgment and any orders of this Court;
·Whether the father should pay the costs of the mother of her Application for Recovery of X filed 17 June 2022 and if so whether they should be paid on an indemnity basis; and
·Whether the Court should make a notation as follows:
·The father has enrolled the child X into a private school, namely, H School (“the private school”). The mother says that the father did so unilaterally and that there was no mutual intention for the said enrolment and the mother will not sign the enrolment form or bear any liability for school fees. Further, the father agrees to pay all school fees for X at the private school.
BRIEF BACKGROUND
The parties were in a relationship from 2003 until March 2017.
The parties have been in litigation since early 2018.
On 12 February 2020 final orders were made by consent providing for the children to reside with the parents on a week about basis.
In March 2022 X was not returned to the mother’s care. The mother consequently filed her application in this matter in June 2022.
On 23 August 2022 orders were made for X to be returned to the mother and suspending any time, contact or communication with the father until October 2022.
On 29 November 2022 further orders were made by consent continuing the suspension of time but providing for X to communicate with the father by telephone once per week, with allowance for such time to be face to face subject to X’s wishes.
In February 2023 X caught a taxi from her school to the father’s home. The father did not endeavour to return X to the mother’s care.
On 16 March 2023 the matter came before the Court for an interim hearing (“the interim hearing”). Following that hearing I determined that X should live with the mother and the father’s time be suspended. On that day I delivered an ex-tempore judgment (“the interim judgment”) which has now been published separately at the request of the mother.
The orders made on that occasion provided for the father to return X to the mother. He was unable or unwilling to do so and accordingly a Recovery Order was made.
Ultimately the Recovery Order was executed by the Australian Federal Police (“the AFP”) and X was returned to her mother in April 2023.
Unfortunately in April 2023 the mother contacted the father and requested he collect X from her care, as X wished to return to the father.
X has remained in the father’s care since that time.
The mother says notwithstanding that she voluntarily returned X, she still has concerns about X in the father’s care. Nonetheless, she does not wish to go against X’s wishes.
THE EVIDENCE
This matter was listed before me for final hearing but given the narrow ambit of the dispute the parties agreed that it could proceed by way of submissions.
On the weekend prior to the trial, the father’s solicitor, Mr Starkie, filed a Notice of Ceasing to Act on the basis he was not granted legal aid funding for the trial but for negotiations only. The Court consequently required Mr Starkie to attend the first day of trial to negotiate and to identify from the myriad of proposed orders which were in dispute. Mr Starkie attended the first day but despite these discussions continuing into a second day, Mr Starkie did not attend the following day. I therefore asked Mr Calden whether he wished for the matter to be stood down or adjourned in order to get Mr Starkie to return to Court however Mr Calden advised the Court he was prepared to represent himself.
In determining these proceedings, I have had regard to all of the evidence, albeit it was not tested. It is not possible to include every aspect of the evidence in these reasons for judgment. However, if a particular fact or issue is not mentioned in these reasons, it does not mean that I have failed to consider it.
LIVE WITH ORDERS BY CONSENT
Despite alleging ongoing concerns for X’s welfare, the mother has consented to orders for X to live with each parent in accordance with her wishes. These orders are also consented to by the Independent Children’s Lawyer (“the ICL”). Nonetheless, the Court must still be satisfied that such orders are in X’s best interests.
The parties have attended upon Ms B, Family Consultant for four family reports. Ms B also provided a short response by email after receiving further material from the parties. Ms B’s final recommendation was that X live with the mother and spend no time with the father. Following the interim hearing, I made orders in line with those recommendations. The Court’s concerns were set out in detail in the interim judgment. In summary, these were that X’s physical and psychological wellbeing deteriorates in the father’s care, she spends no time with her mother, her behaviour becomes dysregulated and her attendance at school is poor.
An order was made in the first instance for the father to return X to the mother’s care and when he was unable or unwilling to do so, a Recovery Order was issued.
In early 2023 the AFP made an attempt to execute the Recovery Order at X’s school. The AFP summarised the attempt in an email to my Chambers as follows:
On attendance at the school, Federal Agents were assisted by the year 8 Coordinator at the school, who had knowledge of the family dynamics, to facilitate the handover of the child to the Applicant. The Applicant and child subsequently met in a private office at the school in the presence of Federal Agents where the return of the child to the Applicant was completed.
In the course of completing the order and ensuing discussions between Applicant and child, it became clear to the Applicant that the child was going to resist her return to the Applicant. Not wanting to further damage the relationship with her child, the Applicant negotiated with the child and agreed they should attempt a gradual process of rebuilding their relationship over future meetings at a time and place to be negotiated. In the meantime the Applicant acquiesced to the wishes of the child to return to class and remain in the care of the father.
However despite acquiescing to X’s wishes to remain with the father and agreeing to a gradual process of rebuilding the relationship, shortly thereafter the mother insisted the Court enforce the Recovery Order.
Given the ongoing concerns for X, the AFP were requested to enforce the order.
The Court was then advised by the AFP that X had made disclosures about being assaulted by the mother and that she was scared to go into her care and that the South Australian Police were investigating.
As a result the Court obtained a report from the Co-Located Officer for the South Australian Police in order to determine whether these were new allegations. After reading the report and establishing they were not, the AFP were again requested to enforce the order.
The AFP subsequently executed the order at an address where X was located and upon doing so provided the following information to the Court in an email to my Chambers on 8 May 2023:
AFP engaged in communications with [X] through the door of the [motor vehicle]. [X] stated she was not going to go with police and did not want to go home as she was scared of her mother. After approximately five minutes of speaking through the [motor vehicle] door, and in compliance with the direction of Judge Jenkins, AFP made the decision to enter the [motor vehicle] by way of force and forcing open the [motor vehicle] door. The father [Mr Calden] was advised what was to occur.
Force (minimal necessary) was applied with a Method of Entry tool to force open the door, while maintaining communications with [X]. AFP spoke with [X], explaining the recovery order and the Federal Court had ordered her to return to her mother. [X] became extremely distressed and stated she would not allow police to take her. AFP continued communication with [X] to reassure her that it was OK to come with Police and she would be returned safely to her mother in [Suburb J].
[X] continued to increase in distress and moved onto a bed and into the corner and began yelling that she would not go with police and not to touch her. After several attempts to reassure [X] and explain that they would need to pick her up if she would not walk to the police car, along with other police present restrained her by talking hold of her arms and legs. [X] began to kick out at police and thrash her arms and legs, resisting being removed from the [motor vehicle].
[X] was exhibiting extreme distress and continued to scream and struggle. [X] was eventually removed from the [motor vehicle] and placed in the rear of the Police vehicle where she continued to struggle for approximately 30 seconds, before calming once the vehicle doors were shut and likely realising the recovery order would be executed without her consent.
AFP drove [X] to the home address of [Jaros] [the mother], [K Street, Suburb L] SA. Upon arrival about 2.45am, Police arrived at [Jaros’] address and [X] entered the premises address along with [Jaros] and [Jaros’] mother, executing the recovery order.
In spite of filing an urgent application to have the Recovery Order enforced, the repeated involvement of the AFP and the successful return of X to the mother’s care, the following day the mother contacted the father and asked him to collect X from her care.
Whilst I remain of the view that it would otherwise be in X’s best interests to remain living with the mother, for the reasons set out in the interim judgment, it appears unlikely that the father would be able to get X to return to the mother and I am not prepared to put X through the experience of another Recovery Order given the extreme distress this caused her. Furthermore, based on the mother’s actions, I could not be confident that the mother would not herself arrange for X to be returned to the father. Consequently I find that in all of the circumstances of this case, the orders proposed are in the best interests of X.
ISSUES IN DISPUTE
Should the parties have equal shared parental responsibility for X?
The mother and ICL seek an order that the parents have equal shared parental responsibility for X. The father proposes he have sole parental responsibility subject to notifying the mother about any anticipated decisions and considering the mother’s point of view.
Section 61DA(1) of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption may be rebutted where a child has been subject to abuse or where there is family violence or if such an order would not otherwise be in the best interests of the child.
As the evidence has not been tested, it is difficult to find that the presumption has been rebutted by virtue of child abuse or family violence. However the Court must still be satisfied that an order for equal shared parental responsibility is in the best interests of the children.
Section 60CC of the Act sets out the matters to be taken into consideration when determining best interests. I have considered each of those sections although I do not consider it necessary to refer to them individually.
In this matter it is not in dispute that the parents have no co-parenting relationship and are unable to communicate in any constructive way.
Nonetheless, the mother argues that it would be in X’s best interests for the parties to share parental responsibility. This is put on the basis that the father has historically failed to ensure X attends school and has ‘doctor shopped’ to obtain medical certificates to support this absence. It is also submitted that the father has told X to lie and/or otherwise try and deceive professionals, such as during the autism assessment. Indeed, X herself reportedly disclosed to Ms B that the father had told her to lie to professionals and to “act in a particular way to appear Autistic.” The mother says that as a result it is vital for X’s wellbeing that she be actively involved in any decisions involving the school and any medical or allied health professionals so such decisions are based on accurate information.
In addition, it is submitted for the mother that in circumstances where the parties have agreed to X living and spending time with the parties in accordance with her wishes, X may end up living with the mother in due course and that if so it would be inconsistent and/or impracticable for the father to have sole parental responsibility.
Whilst I accept the parties may have difficulty making joint decisions for X, they have had, and will continue to have (by agreement), equal shared parental responsibility for Y and no issues have been brought to the Court’s attention with respect to same.
Accordingly I propose to make an order for equal shared parental responsibility for both children.
Should the parties be permitted to communicate by telephone in the event of a serious illness or serious accident involving the children or just by text message?
The parties both propose an order that they communicate in the event the children have a serious illness or are involved in a serious accident however the mother says this should be via text message. The father and ICL propose that the parties communicate by telephone.
The mother argues that if the father is permitted to telephone her, even in an emergency, that he will use this as an opportunity to harass or intimidate her. This is denied by the father. As the evidence was not tested I am unable to make a finding in this regard.
The ICL submits that text messages are easily missed and thus the parties should be required to telephone the other party. The mother says the parties have communicated effectively by text in the past however I accept the argument put by the ICL that this does not mean it may not cause difficulties in the future.
I find that it is in the children’s best interests that if they are seriously unwell or are involved in a serious accident that both parents are made aware as soon as possible and that telephoning is the best way to ensure this occur. However the order shall include that the communication be by both text and telephone so that the mother has the option as to whether she answers the call or not. Whilst she will still be required to telephone the father in the event the children are in her care, hopefully serious illnesses and injuries are an infrequent event.
Should X attend upon Ms D, psychologist?
The parties each initially proposed orders that X attend upon a psychologist. Nonetheless, it was the father’s position that X did not currently need any psychological assistance but rather just needed some time to settle into her routine. As far as he was concerned she was doing well. He submitted she had not been vomiting or having stomach aches and just wanted “to get on with her life” and that pushing her against her will would not be in her interests. The father was also concerned that X had attended a number of professionals.
Nonetheless, X has been subject to a Recovery Order which required the use of some force and reportedly caused her extreme distress. She was then returned to her father and has not seen her mother since. This is on top of the concerns identified in Ms B’s report for X’s psychological wellbeing. I note further psychological intervention was also recommended by X’s paediatrician.
Whilst the father says X does not want to attend a psychologist, X is only 14 years old and despite the parties’ actions, she should not be determining what is in her own best interests.
In all of the circumstances it is vital that X receive ongoing psychological support. X has previously attended upon several psychologists including Ms D and Ms E. As Ms E was unilaterally appointed by the father without the consent or involvement of the mother, she would not be best placed to provide this counselling. Ms D, who was Court appointed, has seen X on about four or five occasions. The father submits that X does not like Ms D because she does not listen to X. However it was submitted by the ICL, and I accept, that X has indicated a dislike of almost every professional involved in this matter, including her other psychologists Ms M and Ms E. Furthermore, Ms D has a great deal of experience in family law and has previously been involved with X, therefore X would not be introduced to yet another professional.
Accordingly I propose to make an order that X attend upon Ms D.
Should Ms D be provided with the family reports and/or a copy of these orders?
The mother and ICL seek orders that Ms D be provided with copies of the four family reports and these orders, to facilitate X’s counselling. This is opposed by the father.
Section 121 of the Act places restrictions on the publication of Court proceedings as follows:
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
The father submits that the family reports are fundamentally flawed and therefore if they were provided to Ms D the counselling would be conducted on a false premise.
However it is very important that Ms D understand all of the concerns in this matter. Ms B has prepared four reports which provide an extensive overview of the case. No doubt there are parts of the reports that both parties do not agree with however Ms D is well experienced in family law matters and I am confident she will be cognisant of this when conducting her counselling.
The father did not oppose Ms D receiving a copy of these orders if she was appointed.
Accordingly I propose to make an order that Ms D be provided with Ms B’s four family reports as well as a copy of these orders.
Should the family reports and a copy of these orders be provided to other third parties included X’s allied health practitioners?
In addition to Ms D, the mother sought that the family reports and a copy of these orders be provided to the National Disability Insurance Scheme (“NDIS”) and X’s treating practitioners and allied health professionals including but not limited to X’s general practitioner, paediatrician, occupational therapist, psychologist, counsellor and speech pathologist.
The father resisted the provision of the family reports to these third parties for the same reasons as Ms D.
I am concerned about the broad release of family reports which could end up being circulated beyond the intended recipients. I also do not see the need for the NDIS as a whole or for practitioners, such as a speech pathologist, to have an understanding of the family law matter.
However I do agree that the paediatrician performing the autism assessment and any psychologist or counsellor attended by X should have a copy of the reports and the orders as the contents are relevant for their assessments and treatment.
Should the mother be required to pay one half of X’s school fees at H School?
The father seeks orders that the mother pay 50 per cent of X’s school fees at H School or at the very least that the mother contribute the funds she would have paid for a public school towards those fees. The mother resists any such order and rather seeks an order that the father be responsible for all such fees.
In or about June 2023 the father unilaterally decided that X should attend H School. Until that time X had always been enrolled in a public school and there is no evidence the parties ever intended otherwise.
The father sent the mother an SMS on 16 June 2023 advising that X had been accepted into H School. On 29 June 2023 the mother’s lawyer responded to the father’s solicitor stating she would not be opposed to the enrolment subject to confirmation she would not be required to pay. To her credit the mother did not oppose the school, even though she was not involved in choosing it and it is a catholic school and she is not catholic.
I note the mother currently pays child support as assessed through the Child Support Agency. As such the father is effectively seeking an order pursuant to s 124 of the Child Support Assessment Act 1989 (Cth) for non-periodic payments of child support. However he has not put the Registrar of the Child Support Agency on notice as required by that Act. Nor has he filed any evidence about the school fees.
Accordingly I do not propose to make an order for the mother to contribute to the school fees.
However the mother remains concerned that if she is seen to be consenting to X’s attendance at the school, she may still in some way be held responsible for half of the fees. As such I propose to make an order that X only be permitted to attend H School on the basis that the father meets 100 per cent of the school fees, indemnifies the mother with respect to same and does not seek a Departure Order from the Child Support Assessment or for the mother to otherwise contribute to the costs.
Should the mother be released from the Harman undertaking in relation to the family reports in this matter, the transcript and the reasons for judgment in relation to the hearing on 16 March 2023 and this judgment?
X alleges she was assaulted by the mother during an incident in February 2023. The matter has been reported to the police and it is understood the mother is facing charges in the Magistrates Court and there is an application for an intervention order.
The mother seeks to be able to refer to the family reports as well as the interim judgment, the transcript of that proceeding, this judgment and any orders of this Court in the Magistrates Court proceedings. She also wishes to be able to provide copies of these documents to the South Australian Police to assist with their investigation. However the mother is prohibited, at least with respect to the family reports, by the Harman undertaking from doing so.
The Harman undertaking derives from the matter of Harman v Secretary of State for Home Department [1983] 1 AC 280 (“Harman”). The scope of the Harman undertaking was described by the High Court of Australia in Hearne v Street [2008] HCA 36 at [96] in the following broad terms:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.
The relevant test for leave is the establishment of ‘special circumstances’. The leading authority on the subject is SpringfieldNominees Pty Ltd and Others v Bridgelands SecuritiesLtd and Others (1992) 38 FCR 217 at [225] in which Wilcox J held:
For "special circumstances" to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant.
The family reports clearly contain information that is relevant to the Magistrates Court proceedings, namely evidence to suggest that the father has told X to lie and/or otherwise deceive professionals. Consequently, an injustice may be done if the mother is not allowed to rely upon them. This in my view constitutes “special circumstances”. Accordingly, I propose to release the mother from the Harman undertaking. Furthermore, although I am not satisfied that the judgments, transcript and orders are captured by the Harman undertaking for want of doubt I will make orders in the terms sought by the mother.
Should the Court order the father to pay the mother’s costs of her Recovery Application filed in June 2022?
The mother seeks the father pay her costs incurred as a result of her Initiating Application in June 2022 which sought the recovery of X. Her primary position is that costs be paid on an indemnity basis.
Section 117 of the Act provides that subject to certain exceptions that parties to family law proceedings ordinarily bear their own costs.
Section 117(2A) sets out the matters the Court shall have regard to when considering whether to deviate from the ordinary course as follows:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
The mother seeks costs on the basis that the father withheld X in March 2022 and that she was required to bring an application to have X returned to her care. An application which was wholly successful.
Furthermore, it was argued that the father had a history of overholding the children contrary to court orders. It was pointed out that His Honour Judge Heffernan in the judgment published in this matter as Jaros & Calden (No. 2) [2020] FCCA 2059 at [12] stated as follows:
It should be borne in mind that the allegations made in the father’s affidavits were extremely serious and if true raised a real prospect that [X] was in imminent danger of self-harm if she remained in the mother’s care. I concluded that I was not satisfied that there was sufficient evidence reasonably capable of belief that gave rise to a concern that the child was at either at immediate or long-term risk if she spent time in the care of the mother. I also concluded that it appeared that the father had been trying to influence the children, and in particular [X], in order to obtain a forensic advantage in the proceedings.
The mother argues that she has incurred substantial legal costs as a result of the father overholding the children and that in each case the father’s allegations have not been found to have any merit.
She sets out in her written submissions her financial situation, in particular that she has no assets or savings and that the father owns his own home and has purchased a new motor vehicle worth between $50,000 and $75,000.
The mother invites the Court in her written submissions not just to consider the circumstances surrounding her Application in a Proceeding but to consider this in the context of the entire history of these proceedings. In doing so I have considered not only what predated those proceedings but what has occurred since, including the conduct of both parties.
In this regard I cannot ignore the mother’s behaviour following the issuing of the Recovery Order in March this year. In particular that upon the first attempt to execute the order, the mother acquiesced to X remaining with the father due to X’s wishes and yet within three days the mother’s solicitor was emailing the Court insisting on the enforcement of the Recovery Order. Then, within a day of the Recovery Order being enforced, the mother returned X to the father’s care.
This process not only put X through significant distress it also involved significant police and Court resources. I also note that whilst the mother repeatedly insisted on the enforcement of the Recovery Order she did not advise the Court that she had returned the child. This only became known when the Court received a further email from the AFP.
In such circumstances I do not propose to make any order for costs.
Should the Court make a notation in relation to the payment of school fees?
Given there is to be an order expressly stating that X is only to be enrolled at H School on the basis that the father pays the school fees and indemnifies the mother, it is unnecessary to make the notation sought by the mother in this regard.
For all the aforementioned reasons I make the orders as set out at the commencement of this judgment.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Jenkins. Associate:
Dated: 14 September 2023
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