Kristiansen & Kristiansen
[2024] FedCFamC1F 827
•6 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kristiansen & Kristiansen [2024] FedCFamC1F 827
File number: BRC 11793 of 2021 Judgment of: BAUMANN J Date of judgment: 6 December 2024 Catchwords: FAMILY LAW – CHILDREN – Contested residence – Where the mother is neurodivergent and receives significant assistance from the National Disability Insurance Scheme (“NDIS”) within her household – Where the mother utilises such assistance for tasks relating to the care of the children – Where the children are also in receipt of NDIS funding – Where such funding is not conditional on the children living with the mother – Where the mother believes the father does not accept the children are neurodiverse nor does he accept the children require additional care in relation to their respective diagnosis – Where the father seeks further involvement within the therapeutic management of the children – Orders made for the children to live with the father and spend time with the mother Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Division: Division 1 First Instance Number of paragraphs: 91 Date of hearing: 25–27 March and 3 & 20 May 2024 Place: Brisbane Counsel for the Applicant: Ms Shepherd Solicitor for the Applicant: Franklin Family Law Counsel for the Respondent: Mr Leneham Solicitor for the Respondent: Sharma Lawyers Counsel for the Independent Children’s Lawyer: Ms Dart Solicitor for the Independent Children’s Lawyer: Ms Hennessey, Legal Aid Queensland ORDERS
BRC 11793 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KRISTIANSEN
Applicant
AND: MS KRISTIANSEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
6 DECEMBER 2024
THE COURT ORDERS ON A FINAL BASIS:
1.That all previous Orders and parenting plans be discharged.
Parental responsibility
2.That the father have sole parental responsibility for the major long term issues of the children X born 2013 and Y born 2016 (collectively “the children”).
3.That subject to the terms of this Order, in the exercise of the father’s sole parental responsibility, except in the event of an emergency, the father must:
(a)give a minimum of seven (7) days’ notice to the mother of any decision he intends to make;
(b)invite the mother to provide her opinion in writing with regards to the decision within seven (7) days;
(c)consider any opinion provided by the mother in writing;
(d)inform the mother in writing within seven (7) days of the final decision being made by him.
Care arrangements for the children
4.That the children shall live with the father from the commencement of the 2025 school year.
5.That the children shall spend time with the mother as agreed between the parents in writing and failing agreement, during school term times, each alternate weekend from after school (or 2.45pm) on Friday until before school (or 8.45am) on Wednesday commencing the second Friday of the new school term.
School holiday periods
6.That unless otherwise agreed between the parents in writing and subject to any Order providing for time on special occasions, the children spend time with:
(a)the father for the first half of the Easter, June/July and September/October school holiday periods in all even numbered years and the second half of the Easter, June/July and September/October school holiday periods in all odd numbered years;
(b)the mother for the first half of the Easter, June/July and September/October school holiday periods in all odd numbered years and the second half of the Easter, June/July and September/October school holiday periods in all even numbered years; and
(c)the parents during the Christmas school holiday period on a week about basis, with changeover to occur after school (or 5.00pm) on a Friday, with the children to spend time with the father in weeks one (1), three (3) and five (5) of the holidays in all even numbered years and weeks two (2), four (4), and six (6) in all odd numbered years, and with the father at all other times.
7.That for the purpose of these Orders, school holiday time shall commence and conclude as follows:
(a)With respect to the first half of the school holidays, the period shall commence with the conclusion of school on the last day of the school term and shall conclude at 5.00pm on the day calculated to be half of the holidays;
(b)With respect to the second half of the school holidays, the period shall commence at 5.00pm on the day calculated to be half of the holidays and shall conclude at 9.00am on the day school term commences; and
(c)the school holidays shall be deemed to commence with the conclusion of school on the last day the school term and conclude at 9.00am on the day school term commences and the number of nights in the school holiday period is used to calculate one half of the holiday period and if there is an uneven number of nights then the mother shall retain the additional night; and
(d)the usual arrangements pursuant to Order 5 hereof are suspended for the duration of the children’s school holiday time.
Special occasions
8.That the children shall spend time with each parent for Easter as follows:
(a)In odd numbered years with the father from 9.00am on Good Friday until 5.00pm on Easter Sunday;
(b)In even numbered years with the mother from 9.00am on Good Friday until 5.00pm on Easter Sunday; and
(c)And otherwise in the care of the parent they would ordinarily be spending time with pursuant to these Orders.
9.That the children shall spend time with each parent for Christmas as follows:
(a)In odd numbered years with the father from 9.00am on Christmas Eve until 5.00pm on Boxing Day; and
(b)In even numbered years with the mother from 9.00am on Christmas Eve until 5.00pm on Boxing Day.
10.That on each of the children’s birthdays, the children shall spend time with the parent they would not otherwise be living or spending time with on that day:
(a)from the conclusion of school until 6.00pm, if the birthday falls on a school day; and
(b)from 12.00pm until 4.00pm if the birthday falls on a weekend, public holiday, or during a school holiday period.
11.That on Mother’s Day the children shall spend time with the mother from 5.00pm on the Saturday before Mother’s Day until before school or 9.00 am on the Monday after Mother’s Day.
12.That on Father’s Day the children shall spend time with the father from 5.00pm on Saturday before Father’s Day until before school or 9.00am on the Monday after Father’s Day.
Changeover
13.That unless otherwise agreed between the parents in writing, changeovers will occur:
(a)at the children’s schools when changeover is occurring before or after school; and
(b)at all other times at B Shopping Centre, Suburb C.
14.That the mother be at liberty to send a nominee on her behalf to changeover provided such nominee is known to the children.
Electronic communication
15.That unless otherwise agreed in writing, the parent with whom the children are living at any given time shall facilitate telephone (or similar electronic communication) between the children and the other parent as follows:
(a)between 5.00pm and 5.30pm on Thursdays; and
(b)at any reasonable time that the children request.
Communication between the parents
16.That the parents shall communicate in relation to the children through the parenting App “Talking Parents” save for in the event of an emergency in which case the parents are to telephone the other parent as soon as reasonably practicable.
17.That the parents will share a calendar on the Talking Parents App and will input the children’s medical and educational appointments within twenty-four (24) hours of making any appointment.
18.That upon receiving any documents or correspondence from a teacher, medical, psychiatric, and/or allied health provider about a matter concerning either of the children, the father.
19.That upon receiving any documents or correspondence from a teacher, medical, psychiatric, and/or allied health provider about a matter concerning either of the children, the father or mother shall provide a copy of it to the other parent within forty-eight (48) hours unless the other parent was copied into the correspondence.
20.That each parent shall keep each other updated with their respective mobile telephone number, email and address details and inform the other within forty-eight (48) hours of any changes to same.
NDIS
21.That the parents shall do all acts and things necessary to enable the father to be appointed as the NDIS nominee for planning and managing the children’s plan funding, and to be the sole point of contact for any NDIS plans for each of the children
22.That unless otherwise agreed between the parents in writing, the children’s NDIS support coordinator will be Cultural Shift (“support coordinator”).
23.That the parents hereby request that the support coordinator consult with both parents in preparing any NDIS applications and/or applications for review.
24.That the parents be restrained from using “D Organisation” to provide support for the children.
Therapy and medical
25.That except in the event of an emergency, the parents will utilise the one (1) general medical practitioner for the children, with the father to nominate such general medical practitioner and inform the mother of their contact details within fourteen (14) days.
26.That the father is to keep the mother informed as to the names and contact details of the children’s treating health care professionals and shall advise her of any change to the same within forty-eight (48) hours.
27.That the mother is restrained from taking the children to any psychologist or other allied health professional who is not engaged by the father or the NDIS support coordinator under the children’s NDIS plan.
28.That if there is a serious medical issue or emergency, the parent with whom the children are in the care of at that time shall contact the other parent forthwith or as soon as reasonably practicable to advise of the following:
(a)The details of the medical issue or emergency;
(b)The details (including name, address and phone number) of where the children are or will be taken to such as the medical practice or hospital; and
(c)The details of the outcome of the medical issue or emergency.
29.That these Orders are intended to be authority for the children’s treating allied health professionals to provide both parents with information pertaining to the children at the requesting parent’s expense.
30.That both parents will follow directions given by the children’s therapists and doctors.
Schooling
31.That unless otherwise agreed between the parents in writing, the parents will facilitate the children completing this current academic year at their current schools.
32.That subject to any rules set by the children’s school and/or extra-curricular activity provider, either parent is at liberty to attend any school event, sporting or extra-curricular event or other social event of the children which would be usual for parents to attend notwithstanding it may occur within the time the children are living with the other parent.
33.That each parent shall keep the other updated as to the contact details of the children’s after school care providers (if any) and extra-curricular activity providers.
34.That each parent is at liberty to contact the children’s school and obtain any and all information, reports, newsletters, school photographs and other documents from the school at the requesting parent’s expense.
35.That the parents do all acts and things necessary to allow each of the parents to be named on the children’s school record as being the persons to be contacted in case of an emergency.
36.That each parent shall make reasonable efforts to facilitate the children attending regular/established health, social and extracurricular activities when the children spend time with the parties.
Other restraints
37.That each parent is restrained from:
(a)discussing these proceedings with the children or in their presence or hearing, or allowing any other person to do so;
(b)making critical or derogatory remarks about the other parent or members of their family to or in the presence or within the hearing of the children or allowing any other person to do so;
(c)making derogatory remarks about the other parent to the children’s schools or service providers including allied health professionals and medical practitioners; and
(d)physically discipling the children.
38.That the mother be restrained from allowing or encouraging the children to call any person other than the father, “dad” or their “second daddy”.
39.That the parents be restrained from recording the children for the purposes of gathering evidence.
Other orders
40.That leave be granted to the parents to provide a copy of these Orders, if required, to:
(a)the children’s schools;
(b)the children’s service providers/allied health professionals/medical practitioners/specialists; and
(c)NDIS and the support coordinator and plan manager.
41.That each parent shall do all acts and things reasonably required by the other including the signing and execution of all necessary documents to give effect to the provisions of this order within fourteen (14) days of being requested to do so.
42.That if either parent refuses to or neglects to sign or execute or return a document within fourteen (14) days of the request to do so, then the Registrar of the Brisbane Registry of this Court is hereby appointed under s 106A of the Family Law Act 1975 to sign or execute such document on behalf of that parent upon lodgement of such document and filing of an affidavit on behalf of the requesting parent as to the said neglect or refusal.
IT IS NOTED:
A.That the interim arrangements in place for the 2024 school holidays (being week about) shall continue to apply until the commencement of the 2025 school year.
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 Kristiansen & Kristiansen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
These proceedings relate to two children X, who is now aged 11 years, and Y, who is now aged 8 years, the focus of a contested parenting dispute between the Applicant father, Mr Kristiansen, and the Respondent mother, Ms Kristiansen. As will become apparent, the children are neurodiverse and have additional needs. The mother is also neurodivergent and requires support which she says she is receiving.
The history of this matter reveals that although the children have maintained a relationship with each of their parents, essentially the Court was confronted by competing proposals, the effect of which were that each parent sought, the children live with them for the majority of time.
The risk issues in this case, as raised, are dealt with later in these Reasons.
COMPETING PROPOSALS
As might be expected in a case of this nature, the parties’ proposals varied from those set out in their outline of case, filed before the trial, which commenced on 25 March 2024. It was not ideal, but the case was prolonged because of firstly the non-availability of the report writer, Mr E, and then finding time for the parties to return to make final submissions which were ultimately concluded on 20 May 2024, when the Judgement was reserved.
The Court expresses its regret in not publishing Reasons in this difficult case more quickly.
In the manner in which submissions were made, I identify the final competing proposals of the parties as follows.
Independent Children’s Lawyer
Attached to written submissions relied upon by the Independent Children’s Lawyer (“ICL”) through Counsel, Ms Dart, was the ultimate file order sought by the ICL, which is marked as Appendix One to these Reasons.
The effect of those orders is that the ICL proposes and makes submissions in support of orders that X and Y would live primarily with the father; that the father would have sole parental responsibility (as that term was then known), and that the children shall spend time with the mother as agreed, but at least each alternate weekend from after school Friday until before school on Wednesday. Effectively, five nights a fortnight. School holidays were to be shared equally, and in respect of the Christmas school holidays, are consistent with Orders made in 2023. The school holidays at the end of term four were to be on a week about basis. As it was a matter of some issue during the trial, specific orders are proposed by the ICL in relation to management of the children's NDIS plans and the subsequent and necessary therapies and medical treatments required to support the children.
Father
Although the father at different stages during the course of the proceedings had sought an equal time arrangement contending that that was in the best interests of the children, by the final submissions, the father essentially agreed with the proposal of the ICL. The written submissions delivered on 20 May by Counsel for the father, Ms Shepherd - noting that all written submissions are referred to later in these Reasons – did not significantly depart from the submissions of the ICL other than Ms Shepherd did not contend that it was necessary for the Court to make the comprehensive findings sought by the ICL.
Mother
The mother during the course of the proceedings had retained lawyers under the section 102NA scheme, and Mr Lenehan of Counsel was briefed by that firm. He made oral submissions at the conclusion of the case which were to the effect that the mother’s proposal in her case outline file on 18 March 2024 was still her preferred position, namely that the mother have sole parental responsibility and that the children live with her, and that the father’s time with the children be each alternate weekend from when school finishes on Friday to when school recommences on Monday or Tuesday, if Monday is a public holiday.
The mother agreed with an equal sharing of school holiday time, and her case outline identifies a number of other specific issues to which reference will be taken later in these Reasons. It is fair, however, to acknowledge that during the course of the mother’s cross-examination, and confronted by the arguments advanced in the family report of Mr E, the mother exhibited some flexibility in increasing the father’s time from that currently being enjoyed by the children with him, but not to the level that she, in effect, had less time with the children and would, as a result, be less in control of the children’s parenting and, in particular, management of their medical needs.
LEGISLATIVE PATHWAY
Because this case was commenced and was part heard prior to the legislative amendments which came into effect on 6 May 2024, the transitional provisions make it clear that the legislative pathway before the amendments are to apply in this case. For simplicity, they are stated as were applicable at the time as follows.
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
CONTEXTUAL CHRONOLOGY
The parties’ trial material was commendably and relatively short, and apart from the mother, the father and Mr E, no other witnesses were the subject of cross-examination. However there were still a number of factual disputes which the parties advanced. I made it clear to the parties, and I confirm it now, that the Court is not required to make findings on every factual dispute or to consider or to rule on every submission or argument put before the Court.
In circumstances where, as it has evolved, the case became one less of risk and more of how shared parenting could and might operate. No useful purpose is served, in my view, in seeking to deal with issues which are no longer pressed by the parties, and I do not propose to do so.
Statements of fact which follow should be construed as findings of fact.
The father is 49 years of age and the mother is now 42 years of age.
They commenced cohabitation in 2008, marrying within two years thereafter and X was born in 2023.
Although not contained in the mother’s affidavit, it is not a disputed fact that after the birth of X, the mother was diagnosed with post-natal depression and spent some time in a mental health facility in Brisbane.
The parties’ daughter, Y, was born in 2016.
As early as September 2017, when X had turned four years of age, he was diagnosed with autism spectrum disorder (“ASD”) at level two. That diagnosis for X and whether the behaviour he has demonstrated, justified the diagnosis, was a matter of some debate between the parties during the trial.
The parties separated on 19 June 2020, although they continued to reside under the one roof for a few weeks thereafter. Not long after the separation, the mother commenced a business, she having had related experience and was interested in providing support for families.
X commenced his schooling at F School in late 2019, but also spent time in Prep at H School. Despite his diagnosis, the evidence is that X has been accommodated within the mainstream school system.
The communication between the parties since separation has been poor. The mother applied and obtained a protection order in July 2020 which was curiously varied after which the mother vacated the home. Without the father’s consent or knowledge on the evidence, which I accept, the mother enrolled the children in a different school, being the J School. Certainly, after physical separation, the father says, and I accept, that he found it difficult to negotiate and arrange to spend time with the children with the mother’s approval.
The father began spending time with the children, but in the presence of the maternal grandmother, Ms G, in about August 2020. The mother withdrew her Domestic Violence Application in late 2020 when the father gave an undertaking in the usual terms. It was to the credit of the parties that by mid-November 2020 they were able to negotiate without Court orders that the children spent time with the father unsupervised in week one from Friday until 4.00pm on Saturday, and in week two, from Friday until 5.00 pm Sunday.
The effect of these Orders was to ensure that the children were primarily in the care of the father over weekends and not during the school week.
It became apparent that the father was becoming frustrated with being unable to move to greater time with the children (noted, again, his clear statements, one of which was videoed, that he sought equal time), the father commenced proceedings on 3 September 2021 in respect of both property and parenting.
Thankfully, the property proceedings were resolved by the parties in August 2022.
Mr E, an experienced social worker and report writer, interviewed the family and observed the children with the parents on 17 May 2022, resulting in a report dated 15 July 2022. For the reasons articulated in his report, Mr E recommended that the children spend time with the father five nights a fortnight in a block from Thursday until Tuesday.
The father brought an application in November 2022 seeking to vary the arrangements to an equal time arrangement. That application came before a Judge in Division 2 on 7 August 2023, where the Judge, rather than dealing with the application then pending, elected to transfer the matter to Division 1. In an endeavour no doubt to identify the reasons for the transfer, the Division 2 Judge made notations at paragraphs A to G, which I incorporate and repeat as follows:
A.That the children, [X] aged 10 and [Y] aged 7 currently spend time with the father each weekend being the first weekend from Friday to Saturday 4.00pm and the second weekend from Friday to Sunday 5.00pm.
B.That there is a long history of notifications coming from the mother to various authorities relating to potential sexual harm of [Y] in the father’s care.
C.That there are two reports from [Mr E] the first dated 19 July 2022 and the second dated 24 March 2023. In the latter report [Mr E] speaks of the suggestion that the mother is not supportive of the children’s relationship with their father and he is of the view that her presentation both at the assessment and the way in which she conducted herself in videos he had seen implied a preoccupation with establishing support for her views. He noted that that concern was consistence with the same concerns he noted in his earlier assessment.
D.That there is also some suggestion in the subpoena notes that concern the mother’s mental health made by police and/or other authorities and there is a concern from the father that there may be possible domestic violence in the mother’s home.
E.That the mother’s partner attended for the first interview and there is a disagreement as to whether he was spoken to by [Mr E] or otherwise.
F.That there have been complaints to multiple agencies with none of those agencies progressing to a full investigation.
G.That the child [Y] was recently interviewed for the purpose of s.93A with the police declining to take the matter further.
The matter first came before me as Case Management Judge on 23 October 2023. By this time, a second report from family report writer, Mr E, was available. Mr E had again interviewed the parties and the children, and observed the children on 17 January 2023, resulting in a report dated 17 March 2023. I deal with Mr E’s evidence, who was the subject of cross-examination at trial, later in these Reasons.
On 23 October 2023, and after observing the requirements of s 102NA of the Act applied, the Court made Orders essentially in the terms of the agreed arrangements that had been operating since November 2020, but incorporating school holiday time for the 2023 Christmas school holiday period, and for Christmas Eve and Christmas Day.
Although at that time the matter was identified as ready for trial and was adjourned for a hearing to commence for three days on 25 March 2024, the Court was invited on 8 February 2024 to delay the trial. The Court elected not to do so. After noting that “upon submitting to a further hair follicle test as directed by the [ICL], the Applicant father may cut his hair”, this being an order made at the insistence of the mother who was raising concerns of drug use, particularly marijuana, trial directions were made for the trial to commence, which it did on 25 March 2024.
MATERIAL RELIED UPON
The father
The father’s case outline identified that in addition to his affidavit filed 4 March 2024, he relied upon an affidavit by psychologist Mr K, filed 4 March 2024, and, interestingly, an affidavit by the maternal grandmother, Ms G, which was also filed on 4 March 2024.
Those affidavits were relied upon by the father but the deponents were not required for cross-examination.
The mother
The mother in her case outline only relied upon an affidavit filed by her on 7 March 2024.
The ICL
The ICL only relied upon the evidence of Mr E contained in his two family reports, filed 27 March 2023 and 18 July 2022.
During this trial, 72 documents were tendered, perhaps because of the extent of the short material of the parties or the attention given by the ICL to the voluminous documents identified through subpoena that may have been relevant. They have, of course, been taken into consideration.
To give some context to these documents, Appendix Two to these Reasons is the index of documents which were marked as Exhibits with a brief descriptor.
As will become apparent, some attention was directed to videos and audios taken by, or relied upon by the mother, marked Exhibit 3.
Before ultimately undertaking an assessment of the competing proposals, within the matrix to the relevant ss 60CC(2) and 60CC(3) considerations, I think it is helpful, in this case, to provide some brief further context to the matter, as follows in these Reasons.
THE FATHER
Although the mother had, at times, and to many different authorities, asserted her concerns that Y had been the subject of sexual abuse by the father, by the time of trial, no such assertion was made by her Counsel, nor in final submissions was any such finding sought.
Even though the mother’s final written submissions, which she required to be considered by the Court (with the consent of her advocate) those submissions do not assert the father is at risk of sexual abuse of the child.
The fact that that is the final position might not have been as apparent from some of the evidence given by the mother, and answers given in cross-examination about her belief system. I was left with a strong impression from the mother’s overall evidence that although she could not demonstrate, on the evidence, any risk of sexual abuse by the father, it is still a matter that she believes could have happened, and/or may happen in the future. When pressed in cross-examination, to be clear about her beliefs and concerns in relation to this topic, she became, not for the first time in cross-examination, somewhat ambivalent and vague.
I make no findings that the father is an unacceptable risk to the children in any way.
THE MOTHER
The mother was insistent and consistent in making it clear to the Court, and to Mr E, that she, as she expressed, is neurodivergent and that “no one understands I am neurodivergent”.
As I understand the mother’s position, to the extent that some of her behaviour has (and it has) been erratic, inconsistent and at times troubling, her answer, almost on every occasion, is that this is a consequence of her neurodiversity. In that regard, the Court was provided with a number of expert opinions and Exhibits, including:
(a)a report by Ms L, being Exhibit 31;
(b)the Ms M report, dated 16 February 2024, being Exhibit 32;
(c)the mother’s lived experience statement, being Exhibit 50;
(d)the mother’s current NDIS plan, being Exhibit 58; and
(e)“shift notes” being Exhibit 71.
Without seeking to minimise a very significant amount of material, I am satisfied that it is appropriate to record, in respect of the mother and her functioning, that:
(a)the mother has been diagnosed with ADHD, ASD, Complex PTSD (arising from childhood abuse and experiences), medical conditions, Anxiety and Depression;
(b)in November 2023, occupational therapist Ms L identified the following impairments of the mother because of psychological disability including:
(i)high levels of fatigue, low energy levels and reduced motivation;
(ii)chronically depressed and high levels of anxiety;
(iii)social isolation and loneliness;
(iv)difficulties with social communication;
(v)poor executive functioning including time management, organisation, working memory, initiation, problem solving, multitasking and diverted attention, concentration and impulsivity;
(vi)frequent disassociation and “losing time” in response to emotional distress;
(vii)difficulties with auditory processing and high sensitivity to auditory input; and
(viii)differences in sensory processing which impact on day-to-day functioning;
(c)the mother has an inability to work (she is a very experienced and skilled educator) such that she has claimed income protection payments through her Super Fund 1entitlements;
(d)she admits (Exhibit 50) she is struggling to maintain routines, organisation appointments and being able to connect at a “healthy family level” and has no family support. Her disorganisation has manifested in hoarding and a need to get assistance to “de clutter” her home, as an example;
(e)in early 2024, the mother had a NDIS plan approved (to early 2027) that includes Core Support Funding of approximately $46,000 per annum to support, assist or supervise the mother “with your personal tasks during day-to-day life that enables you to live as independently as possible”. Total Core Supports have been approved for the mother at approximately $169,000 over the three-year plan period; and
(f)the “shift notes” (Exhibit 71) for the period of May 2023 until March 2024 reveal the daily level of support the mother’s household receives and it involves tasks as collecting the children from and to school; helping the children with homework; domestic assistance and meal preparation.
I am not critical of the mother seeking support and, thankfully, having it approved and funded. That she maintains so many activities and appointments for the children must require a need to prioritise tasks on a daily basis. The mother, in indicating that she has no family support, clearly does not see any support from the children’s father as either helpful or supportive. To a degree, on all the evidence, therein lies part of the problem for their children.
THE CHILDREN
Both X and Y have been diagnosed as being on the autism spectrum, and both have NDIS plans. Additionally, Y has been diagnosed with ADHD.
X's NDIS plan is Exhibit 8 and Y's NDIS plan is Exhibit 9, dated late 2023. As a result of those plans and the support that was offered to the mother, the mother has chosen to engage with a support group called, “D Organisation”, and a number of case notes identifying assistance provided to the mother are referred to in the Exhibits.
Furthermore, there are appointment records with counsellors at an organisation called N Psychology, which were referred to in the Exhibits and have been considered.
I accept that these children do have what the mother describes as “substantial early intervention therapy needs and programs”.
The mother, of course, asserts, and this shapes almost the entirety of her case, that the father has a history of not believing or discounting the medical diagnosis of X, and further has not engaged with the children’s treating doctors or therapists until more recently, and has not supported the children in the mother’s home or in his home with required home routines, exercises, etc.
The mother, in her submissions and consistent with her evidence, acknowledged that the father, “claimed” he believes the diagnosis, which the mother describes as “too little, too late” to be a genuine belief. I disagree with the mother’s assertion. As I will deal with shortly, the mother’s desire to almost completely control the children’s treatment, perhaps at times shaped by her own difficulties to cope with her own functioning needs, and the concentration in her life on her children to whom she is devoted, has made it impossible, in my view, for the mother to give proper credit to the father for both his attempts to engage in active interaction with the children’s therapists and treatment persons.
FAMILY REPORTS
The evidence of Mr E is, I find in this case particularly helpful.
I acknowledge that the Court is not bound to accept the recommendations or opinions of a report writer, even one as experienced as Mr E. The parents are not required to support or agree with every recommendation by a report writer either. Nonetheless, in this case, where Mr E has both had a longitudinal opportunity to assess the family and relationships between the children and the father and mother, and assess in many ways the mother and father personally and their capacity to co-parent, I give his recommendations some weight.
As might be expected, Mr E was the subject of significant cross-examination by Counsel, particularly for the mother. When the Court resumed taking evidence from Mr E on 3 May 2024, the Court was informed that an issue that had arisen during the first part of the hearing and was unresolved in March was that the parties had reached agreement as to how it would be possible to engage people to manage the NDIS plan for the children. There is a dispute about how that would operate, and the ICL’s minute of order reflects what, as I understand the submission to be, on 3 May 2024, an agreement between the parties.
Arising from the evidence of Mr E given orally on 3 May 2024, the following parts of his evidence, helpfully, should be recorded:
(a)Before Mr E was required to be cross-examined, he identified that he had received further information since he had last seen the family in January 2023. That was entirely appropriate, and the documents he received were identified in Exhibit 69, and included trial affidavits, case outlines and a very extensive tender bundle.
(b)Nothing in the new material caused him to change his recommendations or opinions;
(c)His concern about the mother’s capacity to cope without the significant level of support she now receives had not been reduced by the new material. He also says the material he has seen makes it difficult to know how much support the mother really needs to function well, both personally and as a parent. I agree;
(d)When apprised of the mother’s position at the trial; being that she no longer sought a finding that the father was an actual risk to the children (particularly Y) in relation to sexual abuse, Mr E said that even if that is what the Court has been told by the mother, he still feels that she holds that view;
(e)Mr E says that the mother’s capacity to support the children’s relationship with the father was his most significant concern, and that this was, in some way, shaped by the mother’s behaviour, which I accept has occurred, to share her narrative without any form of filtering to “all and sundry”;
(f)He confirmed that, at paragraph 82 of his second report 17 March 2023, he expressed views about the benefit to the children of a change of residence if the Court found the mother could not support the children’s relationship with their father. When pressed in respect of that opinion, he identified that such a change would have both positive and negative effects. Mr E identified at least some of the positive effects would be that the children would spend more time with their father, who is well-functioning and cares about and loves the children no less than does the mother; the father would be an appropriate role model for X, and more time with the father would give him greater opportunity to be involved in their activities, therapy and treatment, as well as their school.
(g)Mr E acknowledged that there are likely to be some short-term difficulties for the children to adjust, and if it was possible for the mother to be supportive of the change, that would be ideal. Mr E did not indicate he felt that was something the mother would find easy to achieve. I agree;
(h)Mr E did not feel he was in a position to offer evidence as to how the mother might cope with an adverse outcome, that namely, to not be in control of the children's parenting and treatment, but that he was confident that she would do better if she had focused and proper therapeutic support;
(i)He identified in his evidence, longer-term risks to the children if they remain primarily in the mother’s care. In particular, that they will become acutely aware of the mother’s narrative about the father, his inadequacies and her superiority, and that the children's confidence and trust in the father’s role as a parent, would in those circumstances be diminished. He said in his view, the children have not yet reached the stage of being able to “reality test their situation”;
(j)Mr E did not support the father’s proposition that there should be a transition of time. He felt that dragging it out was less desirable and that the better approach, if there was to be a change of primary care, would be for it to happen quickly. During the course of that examination of his views, he again made clear that he would not regard this matter as a matter where it would, in a practical sense, be in the best interests of the children to have an equal time regime other than over school holidays. Mr E did see any need for a moratorium, and in fact did not support one;
(k)When invited to make a comment about the competing proposals of parties, he indicated that he believes less changeovers a fortnight would meet the children’s needs, such that whatever time the Court decided should occur should be in one block;
(l)Mr E was asked to consider the complaint made by the mother that not only was he insensitive to her neurodiversity (or simply did not understand what it meant), but that by not allowing her to maintain during the course of the interviews a diary where she could record many things, he was being insensitive to her needs. Mr E indicated that he did not agree that he did not understand her needs. He accepted the report process is stressful and that the mother was anxious about the process. He did not accept that the mother’s need for a diary (primarily so as she is able to remember things in the future) in any way diminished the process of the family report interviews and therefore, his recommendations;
(m)When cross-examined by the father, Mr E agreed that changing time will not change the mother’s beliefs and that any time that the children have with the mother will expose them, potentially, to unfiltered views that the mother might express about the father. Under cross-examination, he indicated that he could support a nine night straight, five‑night sharing of care, with the majority of care being in the father’s home. When cross-examined by the mother’s Counsel, he was informed that the mother in cross‑examination now supports a slight increase in time;
(n)Mr E, when advised of that fact, said that he does not believe the mother’s view in that regard ameliorated his concerns about the mother’s behaviour, as it would not satisfy him that it reveals a change of view; and
(o)Mr E also gave a description of what he understood to be a neurodivergent person, namely, that a person who is neurodivergent suffers from a number of challenges, including perception, behaviour, tolerance, dealing with people and stress. Mr E emphasised that his concern in his recommendations was that the primary environment for the children is the important factor and that the issues in the mother’s home, the evidence about her need for support sometimes for even basic levels, which are not required in the father’s home, have persuaded him that the children living with the father is the best option.
In this case, I give significant weight, as I have already indicated, to the report of Mr E.
I think the criticisms by the mother, of his both process and understanding of the mother are not justified or not made out on the evidence.
SECTION 60CC(2) CONSIDERATIONS
Where both parties are indicating that it is in the best interests of the children that they have substantial time with the other parent, it is apparent that the parents both agree, as does the Court, that the children will benefit from having a meaningful relationship with each parent.
However, s 60CC(2)(b) must be given greater weight than s 60CC(2)(a).
Section 60CC(2)(b) effectively deals with risk issues. In that regard, the comprehensive written submissions of the ICL at paragraph 7 of the written submissions ask the Court to make further and clear findings. Although the father did not seek those findings, I am satisfied the findings are appropriate to be made, and I make them. They are incorporated in these Reasons, as follows:
7. For the reasons set out further below, the ICL invites this Honourable Court to make the following findings:
7.1.The Father does not pose an unacceptable risk of harm to the children. (The ICL seeks a specific finding for the reasons set out further below.)
7.2.It is unnecessary in the context of this case, for findings to be made about whether domestic violence occurred between the parties prior to separation.
7.3.The Mother has not been the victim of family violence post separation at the hands of the Father.
7.4.The Mother has undermined the children’s relationship with their Father and is likely to continue to do so by continuing a narrative that:
7.4.1. The children are at risk in the Father’s care;
7.4.2. She is a victim of family violence; and
7.4.3.The Father’s care of the children has been inadequate in the past and is likely to continue to be so in the future.
7.5.The children are at risk due to the parental conflict. The conflict has impacted and is likely to impact upon them and their receipt of services in the future.
7.6. It is in the children’s best interests that:
7.6.1. They have a meaningful relationship with both parents; and
7.6.2.They should live primarily with the Father and spend time with the Mother.
In saying that, I specifically want to record the following issues:
(a)I am satisfied, of course, that there were events during the course of the parental relationship of friction between the parties and, on at least one occasion, inappropriate conduct by the father towards the mother. The tensions in the relationship have caused the parties, at times, to exhibit inappropriate behaviour towards the other parent. But none of the evidence, in my view, extends to the children being exposed to family violence, save to the extent that they were aware of the conflict between their parents. I am not satisfied, for example, that the children have witnessed any physical abuse between the parties;
(b)The mother, as I say, despite a s 93A interview where the child, Y, made no disclosures at all, and the lack of any probative evidence to support inappropriate behaviour by the father of a sexual nature, did not, until the final hearing began, instruct her lawyers that she sought no finding of risk in that respect. It is not to her credit that she allowed such a serious allegation to hang over the head of the father in this case. The father always denied any inappropriate behaviour of a sexual character with Y, and I accept his evidence in that regard;
(c)I am comfortably satisfied, on all the evidence, that particularly in the post-separation period, the mother has not fully supported, encouraged and facilitated the children having a relationship with the father. If that were to continue, that would, in the Court's view, amount to emotional abuse upon the children. It is not possible to determine whether the mother's perception of the father is shaped by her neurodiversity and her difficulties with perception and difficulties in rationally analysing factual situations. On balance, my view is that much of the mother’s past behaviour is reflective of an absolute focusing of the children’s needs; her view that no one can do it as well as her, and that, certainly, the father cannot do it as well as she has done. There may be an element of the mother feeling threatened by the ongoing pursuit by the father of both more time, even to the extent of equal time. This mother is defined by being the parent with control of these children. She is an intelligent lady, who engages in significant research and discussion about children with diverse needs and regards herself as well informed in this area. She does not accept that the father could ever know as much about this area as she does. Whilst that might be the case in some ways, the mother’s inability to proportionately consider other factors means that these children’s other needs, including socialisation; external activities; engaging with other family and the like; are all at risk of being diminished and affecting their overall functioning, notwithstanding their accepted diagnosis, if they live primarily with the mother.
For completeness, whilst it was never suggested by the father or the ICL that the mother’s time with the children should be in some way restricted or supervised, the focus of this Judgment is the competing proposals about who will have the majority care. As already indicated, Mr E’s view that that should now be the father in view of the history of this matter is one supported by the ICL and not surprisingly, the father, and resisted, not surprisingly, by the mother.
SECTION 60CC(3) ADDITIONAL CONSIDERATIONS
In a narrative form, I make the following further findings.
In the ICLs submissions, the ICL indicated, consistent with current practices, that the ICL met both children together on 8 March 2024, when they indicated that they like spending time with their mother and father; they like their school, and they think it would be good to spend more time with their father. This was consistent with the observations recorded by Mr E.
Properly so, the children were not invited to choose if they had a preference as to which parent they spent more time with. Children of this age may not be able to nor ordinarily understand that when they spend more time with one parent, they spend less time with the other parent, and the effect longitudinally upon them of that change, if any. With X and Y having additional needs, I think it is unlikely they would be able to make that distinction well. I accept on all the evidence that these children do want to spend significant time with both their parents.
In terms of relationships, clearly, apart from the important relationship the siblings have with each other, which is, for these children, a lifelong bonding, I accept Mr E's opinions in his updated family report that the children retain a positive bond with both parents. It was, of course, a matter of friction that the father called the maternal grandmother, Ms G, as a witness.
There is, of course, going to be a discernible change in emphasis in the parenting household that provides for these children if the ICL and father’s proposals are adopted. It is difficult, however, on all the evidence to determine how many people in the mother’s household are involved with the children’s parenting now. This is not in relation to their medical needs or therapies, which are, generally speaking, conducted outside of the home and in professional settings.
I am concerned that the mother’s reliance upon a number of external agencies has more to do with her lack of capacity because of her own needs to consistently meet the children’s needs without such support, a concern that I find does not exist in the father’s household, who I am satisfied will modify his work situation to meet the needs of the children. Having said this, of course, the mother and father, as earlier indicated, are quite different people.
The mother has had extensive experience with the children’s therapists, and I am satisfied, has always tried to do the best by them, consistent with advice she has received. I do not believe the father will ignore advice given to him and is more likely not to adopt it in the same way as the mother would have. In the household, there will be differences of style, which are not likely, in my view, to be such that the children will not cope with the change of primary care.
The parties currently live some distance apart. However, the father gave evidence, which I accept, that he would take steps to move closer to the children’s school, such that he could, as a result, support their continuance at that school, which is, for these children, as for most, an important continuity factor.
In respect of the attitude to parenting and parental capacity, I rely upon earlier findings made, but I cannot leave this topic without referring to Exhibit 3, being the USB containing eight audio files and two video recordings. In my view, this was a blatant evidence-gathering exercise by the mother that does her little credit. She can be seen to be coaching the children to express a view that was supportive and aligned with her own views. In doing so in such a way, she was, on my assessment, acting inappropriately and contrary to the children’s best interests.
Such a view is supported by Mr E who also, as I have, had the opportunity of viewing the electronic recordings.
It is important to try to make orders least likely to lead to further proceedings. In this regard, I cannot ignore that a change of primary carer, for that is what is being proposed by the ICL and the father, will be a matter that the mother will find confronting and possibly distressing. As earlier indicated, this mother is defined by her parenting role, to which she has been devoted notwithstanding her own challenges and difficulties. The amount of time that the children would spend with her under the ICL’s proposal, when considered with the equal sharing of holiday time, means that the mother will still have significant relationship opportunities with the children, but less than she currently does.
I accept there is every prospect that the mother will not be able to resist trying to obtain evidence from external sources (perhaps the children’s therapist and the like) that could, in her view, support a position that the change of primary care was contrary to the best interests of the children such that it should be revisited. Hopefully, that will not occur, but as I say, I cannot ignore the prospect of it occurring.
PARENTAL RESPONSIBILITY
On the evidence, I agree with the mother’s submission that the presumption that it is in the children’s best interests for the parents to have shared parental responsibility does not apply.
The different parenting styles, poor communication and the need for certainty of the major issues of decision-making persuade me that one of the parents should have sole parental responsibility.
Although I accept that this will be seen by the mother as a failure to recognise the enormous effort she has exerted during the life of the children, I am satisfied that it is in the best interests of the children that the father have an order for sole parental responsibility, but with an obligation to consult as proposed by the orders of the ICL.
I accept the arguments often advanced, and in this case, possibly felt by the mother, that an order for sole parental responsibility might marginalise her in such a way as to affect her relationship with the children.
The mother has effectively exercised sole parental responsibility, since separation at least and has not marginalised the father, whose relationship continues to be strong. I see no reason to think the result will be any different if the father has sole parental responsibility from my observations of the father and the evidence he has given.
It is clearly important that there be consultation about major long-term issues. The use of an NDIS plan manager will go some way to helping both parties feel included in decision-making, but I cannot ignore the prospect that there will be conflict between the parents about even small matters. It is in the interests of the children that conflict does not surface in a way which creates further exposure by the children to the conflict. It is best to avoid that by having one person, in my view the father being ultimately, the person with sole parental responsibility.
FORM OF ORDER
In respect of time, noting that this Judgment is delivered at the start of the school holiday period when time shall be shared equally, I am satisfied that it is in the best interests of the children that any change of the primary care arrangements occur from the commencement of the 2025 school year.
On all the evidence, it is my view that the proposal of the ICL is in the best interests of these children.
Without ignoring the supportive submissions made by her Counsel, Mr Lenehan, which although well-articulated, have not persuaded me to agree with the mother’s position, I would not wish the mother to feel that her trial submissions (marked as Exhibit 72), that she described were ignored. I make some comments about her self-prepared submissions now:
(a)The mother says her case was disadvantaged because her legal teams were “unable” to file evidence in support of her case. The Court can only deal with the evidence adduced and can not speculate on what other evidence might be available;
(b)The mother says the father’s claims he believes the diagnosis belies the fact that the father has not done anything substantive to indicate that he genuinely believes the diagnosis of the children nor that any allowances need to be made to cater for their neurodivergence. I have made a finding to the contrary, and further find that the father is both capable and willing to exercise parental responsibility;
(c)The father’s case is not to remove the mother from the children’s lives entirely, nor do the orders I make seek to do so. It may be that this submission, although delivered at the end of the trial, reflected earlier proposals of the father;
(d)In cross-examination by the mother’s Counsel, it was not put to the father that he continues to use an illegal substance daily; has a long-term sex and pornography addiction or coerced the mother into unwanted sexual activities. The mother’s case supports the father having unsupervised time;
(e)The mother asserts behaviour of the father “since the trial” including attempts to take control over the children’s NDIS program and difficulties with managing Y’s asthma over the school holidays. There was no evidence placed before the Court about these issues nor application, before the case finalised in May 2024, to lead new evidence;
(f)Although the mother, through research, identified “precedent cases” relating to children who are on the autism spectrum, cases turn on their own facts as did this case. The Court accepts aspects of major issue decision making can be dealt with separately – for example as the mother says, with the mother having sole parental responsibility for health and education. For the Reasons given, on the whole of the evidence, I did not regard it in the best interests of the children to do so;
(g)The mother criticises the report writer who she says did not acknowledge her qualifications as an educator of years of experience. I have acknowledged that fact;
(h)I do not accept, for the reasons given, that the mother has consistently facilitated the children’s relationship with the father and supported it. Mere compliance with Court orders is but one feature of support;
(i)I do not accept the father will create a “dysregulated environment” and that the time with them “needs to be limited to fewer than 5 days”;
(j)The mother says that the children’s views expressing a desire to spend more time with the father are inaccurate (or even coached), because they have not said so to her. It is open on the evidence to find, as I do, that these two delightful neurodiverse children, aware of the parental conflict and the mother’s views of the father, might not be comfortable in expressing such a view to the mother;
(k)Again “precedent cases for spend time orders for autistic children” which the mother says she has identified; all turn on their own facts; and
(l)I am not satisfied, on the evidence, that it is necessary to impose an injunction/restraint upon the father in relation to alcohol or use of drugs. The evidence is that the father was a user of both in the past, but there is not a foundation for finding either substance is an issue for the father at this time.
I have already acknowledged the dedication the mother has demonstrated for many years in caring for and ensuring the needs of the children have been met. The reasons that I have given reveal why I now regard it in the best interests of the children to move the children into the father’s care, but have significant and substantial time with the mother. I accept regrettably, there is nothing I can say which is likely to convince the mother and those persons around her who support her that my decision is correct.
In conclusion, in all respects therefore, the Court finds that the orders which appear at the commencement of these Reasons are in the best interests of X and Y at this time.
I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 6 December 2024
APPENDIX ONE
MINUTE OF ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER
1.All previous orders and parenting plans be discharged.
Parental Responsibility
2.The Father have sole parental responsibility for the major long term issues of the children X born 2013 and Y born 2016 (“the children”).
3.Subject to the terms of this Order, in the exercise of the Father’s sole parental responsibility, except in the event of an emergency, the Father must:
a.Give a minimum of seven (7) days’ notice to the Mother of any decision he intends to make;
b.Invite the Mother to provide her opinion in writing with regards to the decision within seven (7) days.
c.Consider any opinion provided by the Mother in writing.
d.Inform the Mother in writing within seven (7) days of the final decision being made by the Father.
Care Arrangements for the children
4.That the children shall live with the Father.
5.The children shall spend time with the Mother as agreed between the parents in writing and failing agreement, during school term times, each alternate weekend from after school or 2.45pm on Friday until before school or 8.45am on Wednesday.
School Holiday Periods
6.Unless otherwise agreed between the parents in writing and subject to any Order providing for time on special occasions, the children spend time with:
a.the Father for the first half of the Easter, June/July and September/October school holiday periods in all even numbered years and the second half of the Easter, June/July and September/October school holiday periods in all odd numbered years.
b.the Mother for the first half of the Easter, June/July and September/October school holiday periods in all odd numbered years and the second half of the Easter, June/July and September/October school holiday periods in all even numbered years.
c.the parents during the Christmas school holiday period on a week about basis, with changeover to occur after school/5.00pm on a Friday with the children to spend time with the Father in weeks 1, 3 and 5 of the holidays in all even numbered years and week 2, 4, and 6 in all odd numbered years and with the Father at all other times.
7.For the purpose of these Orders, school holiday time shall commence and conclude as follows:
a.With respect to the first half of the school holidays; the period shall commence with the conclusion of school on the last day of the school term and shall conclude at 5.00pm on the day calculated to be half of the holidays;
b.With respect to the second half of the school holidays; the period shall commence at 5.00pm on the day calculated to be half of the holidays and shall conclude at 9.00am on the day school term commences.
c.The school holidays shall be deemed to commence with the conclusion of school on the last day the school term and conclude at 9.00am on the day school term commences and the number of nights in the school holiday period is used to calculate one half of the holiday period and if there is an uneven number of nights then the Mother shall retain the additional night.
d.The usual arrangements pursuant to Order 5 are suspended for the duration of the children’s school holiday time.
Special Occasions
8.The children shall spend time with each parent for Easter as follows:
a.In odd numbered years: with the Father from 9am on Good Friday until 5:00pm on Easter Sunday; and
b.In even numbered years: with the Mother from 9am on Good Friday until 5:00pm on Easter Sunday; and
c.Shall otherwise spend the Easter period in the care of the parent that they would otherwise be spending time with pursuant to these Orders.
9.The children shall spend time for Christmas as follows:
a.In odd numbered years with the Father from 9am on Christmas Eve until 5pm on Boxing Day;
b.In even numbered years with the Mother from 9am on Christmas Eve until 5pm on Boxing Day.
10.On each child’s birthday, the children shall spend time with the parent with whom they would not otherwise be living or spending time with on that day:
a.From the conclusion of school until 6:00pm, if the birthday falls on a school day; and
b.From 12pm until 4pm if the birthday falls on a weekend, public holiday, or during a school holiday period.
11.On Mother’s Day the children shall spend time with the Mother from 5pm on the Saturday before Mother’s Day until before school or 9am on the Monday after Mother’s Day.
12.On Father’s Day the children shall spend time with the Father from 5pm on Saturday before Father’s Day until before school or 9am on the Monday after Father’s Day.
Changeover
13.That unless otherwise agreed between the parents in writing, changeovers will take place:
a.When changeover is occurring before or after school at the children’s schools; and
b.At all other times at B Shopping Centre , Suburb C.
14.The Mother be at liberty to send a nominee on her behalf to changeover provided such nominee is known to the children.
Electronic communication between the parents and the children
15.Unless otherwise agreed in writing, the parent with whom the children are living at any given time shall facilitate telephone (or similar electronic communication) between the children and the other parent as follows:
a.Between 5pm and 5:30pm on Thursdays; and
b.At any reasonable time that the children request.
Communication between the parents
16.The parents shall communicate in relation to the children through the parenting App “Talking Parents” save for in the event of an emergency in which case the parents are to telephone the other parent as soon as reasonably practicable.
17.The parents will share a calendar on the Talking Parents App and will input the children’s medical and educational appointments within twenty-four (24) hours of making any appointment.
18.Upon receiving any documents or correspondence from a teacher, medical, psychiatric, and/or allied health provider about a matter concerning either of the children, the Father.
19.Upon receiving any documents or correspondence from a teacher, medical, psychiatric, and/or allied health provider about a matter concerning either of the children, the Father or Mother shall provide a copy of it to the other parent within 48 hours unless the other parent was copied into the correspondence.
20.Each parent shall keep each other updated with their respective mobile telephone number, email and address details and inform the other within 48 hours of any changes to same.
NDIS
21.The parents will do all acts and things necessary to enable the Father to be appointed as the NDIS nominee for planning and managing the children’s plan funding, and to be the sole point of contact for any NDIS plans for the following:
a.X born 2013; and
b.Y born 2016.
22.Unless otherwise agreed between the parents in writing, the Children’s NDIS support coordinator will be Cultural Shift (“support coordinator”).
23.The parties hereby request that the support coordinator consult with both parents in preparing any NDIS applications and/or applications for review.
24.The parents be restrained from using “[D Organisation]” to provide support for the children.
Children’s therapies & medical
25.Except in the event of an emergency, the parents will utilise the one general medical practitioner for the children with the Father to nominate such general medical practitioner and inform the Mother of their contact details within fourteen (14) days.
26.The Father is to keep the Mother informed as to the names and contact details of the children’s treating health care professionals and shall advise her of any change to the same within 48 hours.
27.The Mother is restrained from taking the children to any psychologist or other allied health professional who is not engaged by the Father or the NDIS support coordinator under the children’s NDIS plan.
28.If there is a serious medical issue or emergency then the parent in whose care the child/children are in is to contact the other parent forthwith or as soon as is reasonably practicable to advise of the following:-
a.The details of the medical issue or emergency;
b.The details (including name, address and phone number) of where the child / children is or will be taken to: for example medical practice, hospital; and
c.The details of the outcome of the medical issue or emergency.
29.These orders are intended to be authority for the children’s treating allied health professionals to provide both parents with information pertaining to the children at the requesting parent’s expense.
30.Both parents will follow directions given by the children’s therapists and doctors.
School
31.Unless otherwise agreed between the parents in writing, the parents will facilitate the children completing this current academic year at their current schools.
32.Subject to any rules set by the children’s school and/or extra-curricular activity provider, either parent is at liberty to attend any school event, sporting or extra-curricular event or other social event of the children which would be usual for parents to attend notwithstanding it may occur within the time the children are living with the other parent.
33.Each parent shall keep the other updated as to the contact details of the children’s after school care providers (if any) and extra-curricular activity providers.
34.Each parent is at liberty to contact the children’s school and obtain any and all information, reports, newsletters, school photographs and other documents from the school at the requesting parent’s expense.
35.The parents do all acts and things necessary to allow the Mother and Father to both be named on the Children’s school record as being the persons to be contacted in case of an emergency.
36.Each party shall make reasonable efforts to facilitate the children attending regular/established health, social and extracurricular activities when the children spend time with the parties.
Other restraints
37.That each parent is restrained from:
a.Discussing these proceedings with the children or in their presence or hearing, or allowing any other person to do so;
b.Making critical or derogatory remarks about the other parent or members of their family to or in the presence or within the hearing of the children or allowing any other person to do so; and
c.Making derogatory remarks about the other parent to the children’s schools or service providers including allied health professionals and medical practitioners; and
d.Physically discipling the children.
38.The Mother be restrained from allowing or encouraging the children to call any person other than the Father, ‘Dad’ or their ‘second Daddy’.
39.The parents be restrained from video taping or otherwise recording the children for the purposes of gathering evidence.
Other
40.Leave be granted to the parents to provide a copy of these Orders, if required, to:
a.The children’s schools;
b.The children’s service providers/allied health professionals/medical practitioners/specialists; and
c.NDIS and the support coordinator and plan manager.
41.Each parent shall do all acts and things reasonably required by the other including the signing and execution of all necessary documents to give effect to the provisions of this order within 14 days of being requested to do so.
42.If either parent refuses to or neglects to sign or execute or return a document within 14 days of the request to do so, then the Registrar of the Brisbane Registry of the Federal Circuit and Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that parent upon lodgement of such document and filing of an affidavit on behalf of the requesting parent as to the said neglect or refusal.
APPENDIX TWO
| Index and description of Exhibits | ||
| Exhibit No. | Description | Party who submitted exhibit |
| 1 | Email correspondence between the parents dated 24 March 2023 providing an update regarding the children in relation to speech therapy, health, psychology, constipation and X’s mouth | RM |
| 2 | Record of communication between the parents via My Talking Parents Application regarding children’s appointments and obtaining a copy of baby photos from a hard drive | RM |
| 3 | USB containing 8 audio files and 2 video files | ICL |
| 4 | N Psychology appointment record dated December 2023 in relation to Y who attended session with AF and session topics relate to building rapport/communication between Y and AF | ICL |
| 5 | N Psychology appointment record dated January 2024 in relation to Y who attended session with AF and where session notes show positive interactions between Y and AF | ICL |
| 6 | Redacted affidavit of Mr K filed 4 March 2024 relating to therapeutic treatment reports of AF | AF |
| 7 | NDIS correspondence dated September 2022 attaching a copy of Ms Kristiansen NDIS plan | ICL |
| 8 | NDIS correspondence dated August 2023 attaching a copy of X NDIS plan | ICL |
| 9 | NDIS correspondence dated September 2023 attaching a copy of Y NDIS plan | ICL |
| 10 | D Organisation Case Note dated February 2024 regarding a NDIS review meeting for RM | ICL |
| 11 | O Psychology Session Progress Notes dated December 2023 in relation to X and AF | ICL |
| 12 | N Psychology appointment record dated March 2023 in relation to Y stating she does not want to go to AF home | ICL |
| 13 | N Psychology appointment record dated November 2023 in relation to Y, where her social worker “Ms P” reported statements the children have said to her regarding cameras in AF’s home | ICL |
| 14 | Occupational Therapy Review Report prepared by Ms Q in relation to Y [pages 227-236 of ICL tender bundle] | ICL |
| 15 | QPS Solicitors Office Report Details regarding the AF refusing to pay child support; being financially controlling; hiding audio recording device in BBQ and children not being cleaned by AF after they “pooh themselves” [pages 55 & 56 of ICL tender bundle] | ICL |
| 16 | J School record of contact where RM discusses reasons for leaving relationship and NAPLAN with school, AF discusses NAPLAN with school & RM request further resources from school [pages 65 & 66 of ICL tender bundle] | ICL |
| 17 | Conversation log – R Education – Engage Student Support System regarding AF calling the school to ascertain if X is in attendance & school staff consulting the RM if she consents to same being shared with AF [pages 75 – 77 of ICL tender bundle] | ICL |
| 18 | Correspondence from Dr S to Dr T dated September 2017 re: X and ADOS assessment | ICL |
| 19 | Department of Education Minutes of Stakeholder Meeting regarding X dated February 2024 where both parents were present and along with various practitioners, and [Ms P] | ICL |
| 20 | Email correspondence to Ms P, and others, BB Service, dated February 2024 attaching extract of conversation titled “[sport]” dated February 2024 subject title “Just some communication for your entertainment…” | ICL |
| 21 | Email correspondence to Ms P dated February 2024 attaching extract of conversation titled “NDIS” dated January 2024 subject title “lead up to Court” | ICL |
| 22 | O Psychology Session Progress Notes dated December 2023 re: X – attendance by RM only and discusses management of X and coparenting relationship with AF to child’s psychologist | ICL |
| 23 | Correspondence from Ms M (U Support Services) to Ms P dated December 2023 with the subject “[Kristiansen] Shift Concerns” the subject of concerns being related to statements by the children of events in AF’s home | ICL |
| 24 | Conversation log – Talking Parents extract titled “[Y] hygiene” dated December 2023 regarding spray bottle and toileting hygiene | ICL |
| 25 | Department intake form where notifier makes report of AF engaging in behaviour considered by the notifier as a potential indicator of grooming the child Y [pages 23 to 33 of ICL tender bundle] | ICL |
| 26 | Department intake form where notifier states the child Y showers and bathes with the AF [pages 34 to 44 of ICL tender bundle] | ICL |
| 27 | Bundle of Documents produced under subpoena directed to “D Organisation” 50 pages [provided to Mr E] | ICL |
| 28 | Log of conversation between parents regarding mother’s day spend time with arrangements [page 315 of ICL tender bundle] | AF |
| 29 | Screenshots of TikTok posts posted by RM | AF |
| 30 | Document titled “[X] and [Y's] Allied Health Team” prepared by RM | AF |
| 31 | Correspondence from Ms L – Occupational Therapist to Dr V dated November 2023 | AF |
| 32 | Email correspondence from Ms M to RM and “relevant support team” dated February 2024 attaching supporting report of how support can be provided to RM to assist her in running the home and caring for the children | AF |
| 33 | D Organisation home visit case note dated September 2023 where RM discusses concerns with allied health professionals and various life administration matters | AF |
| 34 | D Organisation home visit case note dated August 2023 where RM provides case worker various information about her lived experience within her relationship with RM and how she has been progressing and coping with proceedings | AF |
| 35 | D Organisation home visit case note dated September 2023 where RM provides further update with similar content to that of Exhibit 34 | AF |
| 36 | Medical certificate of Dr W dated June 2022 where RM is confirmed to have a diagnosis of ADHD, ASD, generalised anxiety disorder with panic attacks occurring against a background of PTSD consequent upon emotional and physical abuse in childhood | ICL |
| 37 | Super Fund 1 Income Protection Benefit Claim - Member’s Statement for RM for Queensland Education | ICL |
| 38 | D Organisation website page with blurbs and photos of the support workers | ICL |
| 39 | D Organisation case note titled “[Late October 2023] Attended Family Law Court and Provided Assistance” dated October 2023 where support worker made notes regarding proceedings and discussions following Court event | AF |
| 40 | D Organisation case note titled “Phone Call Case Note” dated October 2023 where RM discusses co-parenting and life administration matters and management of children | AF |
| 41 | D Organisation case note titled “Phone Call Case Note” dated November 2023 where RM discusses co-parenting and life administration matters and management of children | AF |
| 42 | Home visit case note of D Organisation dated November 2023 regarding RM’s visit to GP and feeling frustrated by the medical practitioner | AF |
| 43 | Email from Social Worker Ms P to Dr W dated November 2023 | AF |
| 44 | Email from Social Worker Ms P to Ms L dated November 2023 regarding Super Fund 1 work claim | AF |
| 45 | Email from RM to Social Worker Ms P dated November 2023 re: seeking out a psychologist | AF |
| 46 | D Organisation case note titled “Phone Call Case Note” dated November 2023 where RM discusses the children, communicating with AF via parenting app and the child Y having an irritated/sore vagina | AF |
| 47 | D Organisation case note titled “Phone Call Case Note” dated December 2023 where RM discusses her difficulties in co-parenting and some historical issues in her relationship with AF and life administration tasks | AF |
| 48 | D Organisation case note titled “[February 2024] Case Work – Looking for Support Coordinator Options and Planning for NDIS review meeting” dated February 2024 | AF |
| 49 | D Organisation case note titled “[January 2024] Phone Call with [Ms Kristiansen] – [X] School Refusal” dated January 2024 | AF |
| 50 | Lived experiences report of RM | AF |
| 51 | Solicitors Office Report Details where RM has approached the QPS regarding her concerns of domestic violence and care of the children in relation to AF [pages 113-118 of ICL tender bundle] | AF |
| 52 | Email from Social Worker Ms P to RM dated February 2024 as to some organisational support providers | ICL |
| 53 | Shared calendar in talking parents which lists children’s commitments and meetings scheduled between the parents | ICL |
| 54 | Complete calendar record – talking parents | ICL |
| 55 | Centrelink Income Statement dated December 2023 and Super Fund 1 email dated May 2023 | ICL |
| 56 | Email dated August 2023 from RM to school guidance counsellor | ICL |
| 57 | Email dated August 2023 from Ms Z (guidance counsellor) | ICL |
| 58 | RM current NDIS plan | ICL |
| 59 | Paragraphs 23 – 43 of the mother’s affidavit filed 28 September 2022 re: RM concerns for children in AF care | All parties by consent |
| 60 | Application for a Protection Order filed July 2020 and Solicitors Office Report Details dated July 2022 | All parties by consent |
| 61 | N Psychology notes regarding the child X dated July 2023, November 2023 and December 2023 | All parties by consent |
| 62 | N Psychology notes regarding the child Y dated January 2023, March 2023, April 2023, August 2023, October 2023, November 2023 | All parties by consent |
| 63 | F School schooling records including email dated July 2020; notes dated August 2020 and email dated July 2020 | All parties by consent |
| 64 | Department of Education – J School schooling records | All parties by consent |
| 65 | Department of Children, Youth Justice and Multicultural Affairs (as it was then known) intake form dated March 2023 | All parties by consent |
| 66 | J School schooling reports of both children | All parties by consent |
| 67 | Reports of Ms AA | RM |
| 68 | Additional tender bundle including documents relative to children’s therapies | ICL |
| 69 | Father’s updated minute of orders sought | AF |
| 70 | Email from RM’s solicitor dated 8 April 2024 | ICL |
| 71 | Shift Notes – from Ms M (from May 2023 –March 2024) | ICL |
| 72 | RM’s written submissions handed up to the Court at her Counsel’s opposition | RM |
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