Jaubert & Weiss
[2025] FedCFamC1F 165
•5 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jaubert & Weiss [2025] FedCFamC1F 165
File number(s): ADC 5617 of 2022 Judgment of: KARI J Date of judgment: 5 March 2025 Catchwords: FAMILY LAW - CHILDREN – Ex Tempore Reasons – Where the Court would have been unable to make the findings the parties sought based on the state of the evidence – Where the parties no longer seek those findings – Where final parenting orders were made by consent Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 5 March 2025 Place: Adelaide Counsel for the Applicant: Mr McQuade Solicitor for the Applicant: C M Tucker & Associates Counsel for the Respondent: Mr Praolini Solicitor for the Respondent: Pascale Legal Barristers & Solicitors Counsel for the Independent Children's Lawyer: Mr Hemsley Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 5617 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS JAUBERT
Applicant
AND: MR WEISS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
KARI J
DATE OF ORDER:
5 MARCH 2025
UPON NOTING the parties accept the evidence available to the court does not support a finding that the child X was assaulted by either the mother, or her partner Mr B AND UPON FURTHER NOTING the father no longer seeks such findings.
THE COURT ORDERS BY CONSENT THAT:
1.All previous parenting orders be discharged.
2.The parties have shared decision-making responsibility for all major long-term decisions affecting the children X born in 2016 and Y born in 2020 ("the children") SAVE AND EXCEPT THAT as to medical and dental matters wherein the mother shall have sole parental responsibility and sole decision making after having first consulting with the father.
3.The children live with the mother as and from the conclusion of school 6 March 2025.
4.The children spend time with the father as follows:
(a)During each school term, each alternate weekend from the conclusion of school on Wednesday (or 3:00pm if a non-school day) commencing 12 March 2025 to the commencement of school on Monday (or 9:00am if a non-school day) commencing 12 March 2025;
(b)During each school holiday period, from the conclusion of school on the last day of school to 3:00pm on the following Friday, and each alternate week thereafter;
(c)Such further or other times as agreed between the parties in writing.
5.Handovers that do not occur at the children's school shall take place at the Town C Police Station.
6.The children spend time with each of their parents on special occasions as follows:
(a)If not otherwise in his care, with the father on Father's Day from 9:00am to 5:00pm;
(b)If not otherwise in her care, with the mother with the mother on Mother's Day from 9:00am to 5:00pm;
(c)On the occasion of Christmas:
(i)With the Mother from 3:00pm on 24 December 2025 to 3:00pm on 25 December 2025 and in each alternate year thereafter;
(ii)With the Father from 3:00pm on 25 December 2025 to 3:00pm on 26 December 2025 and in each alternate year thereafter;
(iii)With the Father from 3:00pm on 24 December 2026 to 3:00pm on 25 December 2026 and in each alternate year thereafter;
(iv)With the Mother from 3:00pm on 25 December 2026 to 3:00pm on 26 December 2026 and in each alternate year thereafter;
7.The parties are restrained, and an injunction is hereby granted restraining both of them from:
(a)Consuming illicit substances or drinking alcohol to excess 24 hours prior to or while the children are in their care;
(b)Threatening, abusing, harassing or denigrating the other party or the other party's family in the presence of the children or allowing any third party to do so; and
(c)Discussing the proceedings with the children or the allegations made in these proceedings with the children or in their presence, or allowing any third party to do so.
8.The parties and each of them:
(a)Communicate in relation to the care, welfare and development of the children by AppClose;
(b)Immediately advise the other parent in the event of any injury or illness suffered by the children (or either of them), which requires admission to a hospital and thereafter, each parent be at liberty to attend at any facility where the children (or either of them) are being treated or admitted;
(c)Be at liberty to attend upon and make enquiry of any medical practitioner, dentist, counsellor, therapist or allied health practitioner upon whom either child attends from time to time and obtain copies of all records and/or reports relating to the children with production of these orders to be sufficient authority to do so;
(d)Be at liberty to attend at the children's sport's days, school concerts, parent/teacher nights and other events to which parents are ordinarily invited on condition that neither party approaches the other (unless expressly invited to do so) with production of these orders to be sufficient authority to attend such events;
(e)Be at liberty to obtain copies of all school newsletters, reports, photographs and the like at each parent's sole expense with production of these orders to be sufficient authority to do so;
(f)Be at liberty to attend at all the children's extracurricular activities (including training) on condition that neither party approaches the other (unless expressly invited to do so) with production of these orders to be sufficient authority to attend such activities;
(g)Facilitate the children communicating with the other parent by telephone at any reasonable time requested by the children (or either of them).
9.The appointment of the Independent Children's Lawyer be discharged save as to:
(a)the issue of costs and any appeal; and
(b)as soon as reasonably practicable, the ICL meeting with the children to explain the terms of these Orders to them.
10.The proceedings be dismissed as finalised.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Jaubert & Weiss has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
KARI J:
PRELIMINARY REMARKS
I indicate from the outset that if the parties wish to understand my preliminary views in a more fulsome way, then they should have recourse to the transcript and the preliminary comments I made at the commencement of the day today.
The parties were present in the Court for quite a significant portion of those comments and they heard my preliminary views, taking on board matters raised by the Independent Children's Lawyer (“ICL”) in his outline and having read all of the material before the Court for trial. The point in time in which the parties left the courtroom was not insignificant in the sense that I took a view that, they should not be in the courtroom for some of my comments because I was concerned so as not to influence their ultimate evidence in the proceedings, given that I was making comment about the nature of the evidence before the Court at that time in a more detailed way than had been done by the ICL in his outline and, importantly, in the comments that I had made when the hearing commenced. I therefore preface these reasons by indicating that they should be considered together with the comments I made earlier in the day today.
BACKGROUND
These proceedings come before the Court in relation to the parties' two children: X, born in 2016; and Y, born in 2020.
The proceedings have quite a significant history before the Court. They were commenced by the mother on 9 December 2022.
I cannot help but reflect that prior to the proceedings coming before a judge, it took 14 separate court events (some in chambers), whether they be before a senior judicial registrar or a registrar.
When the matter first came before a judge, it was well into the life of the proceedings and at a point in time where a whole number of things were firmly entrenched about the living and time spending arrangements for the children.
Indeed, as a result of the case management pathway, the first time that these proceedings came before a judge was at the compliance and readiness hearing before a judge in Division 2 on 23 July 2024.
I note that at that juncture, the judge had the family report of Ms D which is before the Court for trial and is dated 17 June 2024. Importantly, the parties and the ICL had the benefit of that report at that juncture.
Within relatively short compass of the proceedings being transferred to this Court and on 22 November 2024, the proceedings were given today's trial date.
I give that history because it strikes me that, until now, there has not been the attention of a judge considering the material before the Court and being in a position to express any preliminary views to the parties akin to those I expressed at the commencement of the final hearing about the state of the evidence before the Court for the final hearing. Of significance in that regard is that the evidence now before the Court for trial ultimately led the ICL to express significant and helpful views in his outline of case filed for the trial.
THE EVIDENCE BEFORE THE COURT
On or about March of 2023, a very significant allegation was made. The allegation involved both the mother and her partner, Mr B. The allegation involved an alleged disclosure made by the child X to the father that there had been an event which caused X, from the father's perspective, to suffer an injury. The event is alleged to have included at least Mr B inflicting physical harm upon the child X.
This allegation had a significant consequential effect so far as the mother's relationship with the children is concerned but also so far as Mr B was concerned, because he was ultimately charged with a criminal offence in relation to these alleged disclosures and allegations.
The child X was the subject of two separate records of interview and while I have not yet watched the videos (I would have been requested to as part of the trial), I, in any event, have the benefit of the Child Protection Services report dated 26 July 2023, and the author of that report was scheduled to give evidence in these proceedings.
I comment that one of the concerns I held and I expressed at the commencement of these proceedings is that, on the state of the evidence before me, it was not clear to the Court whether, indeed, there had even been an injury suffered by the child X. That is significant from my perspective because aside from a medical report when the child was presented to the emergency department, produced by the ICL and which was to have been received into evidence for the trial, there was no other medical evidence before the Court which enabled the Court to make any positive finding that the injury, as alleged by the father, had indeed occurred.
I cannot help but comment that from the mother's perspective, she says that there was no such injury and that the photographs which she is now in possession of, to her, look more like a mosquito bite allergic reaction. While I am not a medical professional, I make it clear to the parties that in the same way that I do not consider I have enough evidence before me to make a finding that X suffered an injury, I equally consider that I do not have sufficient evidence before me to rule out what the mother asserts, and that is that the presentation of X was indeed caused by a mosquito bite and a reaction of some sort in that regard.
These are significant matters because as part of the cascading effect of events which took place in March 2023 is that there were significant constraints placed on the mother's time spending with the children.
THE AGREEMENT REACHED
The parties today, to their credit and, undoubtedly, with the assistance of the ICL and the very helpful outline filed on behalf of the ICL, have come to a position where despite these allegations which impacted in a very meaningful way the children's relationship with their mother, the parties now jointly invite the Court to make a range of orders that will see both parents significantly and substantially involved in parenting these children.
Importantly, the notations to the orders indicate that the expert evidence does not support a finding that X was assaulted by either the mother or Mr B and, indeed, the father makes it clear to the Court in the notations that he no longer seeks those findings to be made by the Court. As a result of those agreements and concessions, the orders that the parties now mutually invite the Court to make, which have the support of the ICL, will see the children essentially living with the mother and spending five nights each fortnight during school term with the father and the parties sharing equally, on a week-about basis, the school holiday time spending for the children.
Importantly, no injunctions are to be made in relation to either the mother's partner Mr B, nor the father's partner Ms E, who have featured in these proceedings. I have already touched on Mr B but, so far as Ms E is concerned, concerns have been raised in relation to her own parenting capacity which would have been a feature of the evidence to be traversed in these proceedings had the trial proceeded.
The parties otherwise have come to an agreement in relation to the question of decision-making and parental responsibility for these children which will see - to use the words of counsel for the father - a “circuit breaker”, with the mother ultimately having sole parental responsibility and sole decision-making in relation to medical and dental matters relating to the children.
I note that, quite properly, the orders provide for handover arrangements and special occasion time spending to ensure that both children see both their parents for special occasions and, otherwise, certain injunctions are made, and there are provisions for the parties to communicate but otherwise attend various events which will feature in these children's lives for a long time to come, given their young ages.
The ICL appointment is to be discharged subject to two things; any costs or appeal, but importantly, from the Court's perspective, given that there is to be a very significant change to the children's living arrangements, the ICL is to, as soon as practicable, meet with the children and explain the terms of these orders to them. Lest it not be obvious from the transcript, that order has been inserted in part as a result of the exchange had between the ICL and myself, given the very significant change to the children's living arrangements which will see them, from the conclusion of school tomorrow, moving to live in the primary care of their mother.
The parties today have come to a very significant turning point in the lives of their children. It is to their mutual credit that they have been able to broker a resolution of these proceedings that, from my perspective, puts the interests of their children ahead of their own personal views, animosities, and grievances that they might have about each other.
It is clear to me from the evidence that I do have at the moment, that there is a very difficult and fractured co-parenting relationship, and I can only hope that with the resolution of these proceedings, the parties will see a way forward and a way of improving that fractured co‑parenting relationship. That they have reached an agreement today, in my view, stands as a very good starting point for the parties to get that co-parenting relationship back on track for the benefit of their children.
Having made all of those comments, can I indicate that, having considered all of the evidence filed for trial in these proceedings and having heard the submissions of counsel, I have no difficulty in forming the view that the orders the parties have today, together with the ICL, invited the Court to make are ones that are in both X and Y's best interests.
I accordingly now make orders in terms of the amended minute of order signed by the parties and endorsed and signed by me today.
NOTE:
These reasons have been corrected from the transcript. Topic headings have been inserted and grammatical errors have been corrected. In addition amendments have been made to make the orally delivered reasons clear and easy to read.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 17 March 2025
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