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
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…
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- Case
- [2023] FedCFamC2F 1173
- Decision Date
CaseChat Overview and Summary
The court accepted the parties' proposal for equal shared parental responsibility, acknowledging the need to protect the children from ongoing conflict. Regarding the children's living arrangements, the court approved the mother's consent to an order allowing the eldest child, X, to choose where she lives, despite the mother's concerns about her welfare in the father's care. The court set out detailed arrangements for the children's time to be spent with each parent, including specific provisions for school days, holidays, and special occasions. The court also outlined procedures for handovers, attendance at school events, and communication between the parents.
The court addressed healthcare and education provisions, mandating joint responsibility for the children's medical appointments and requiring the father to contribute to the eldest child's private school fees. The court further ordered the children to undergo psychological assessments and provided detailed guidelines for communication and information sharing between the parents. The court also ruled on the use of certain documents in related criminal proceedings and discharged the Independent Children's Lawyer. Ultimately, the court dismissed all outstanding applications and made no order as to costs.
Orders
Orders of the court
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.
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