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…
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- Case
- [2024] FedCFamC1F 827
- Decision Date
CaseChat Overview and Summary
The court had to decide whether the children should reside primarily with the father or the mother, given the mother's neurodiversity and reliance on the National Disability Insurance Scheme (NDIS) for support within their household. Additionally, the court examined the father's desire for increased involvement in the children's therapeutic management and the mother's allegations that the father did not accept the children's neurodiverse status or their need for additional care. The court also needed to address the mother's concerns about the father's conduct and her belief that he undermined their relationship with her.
In its reasoning, the court found that both parents wanted the children to have substantial time with the other, indicating that it was in the children's best interests to maintain a meaningful relationship with each parent. The court emphasised that section 60CC(2)(b) of the Family Law Act, which pertains to risk issues, should be given greater weight than section 60CC(2)(a). The court made several findings, including that the father did not pose an unacceptable risk of harm, and that the mother had undermined the children's relationship with their father by fostering a narrative of risk and victimhood. The court also noted the detrimental impact of parental conflict on the children.
The court ordered that the children would live primarily with the father, starting from the commencement of the 2025 school year, and would spend time with the mother according to a detailed schedule that included alternate weekends, school holidays, special occasions, and birthday celebrations. The orders also outlined specific arrangements for communication, medical care, therapy, schooling, and other aspects of the children's lives to ensure both parents' involvement and to mitigate the effects of parental conflict. The court further imposed restraints on both parents to protect the children from exposure to harmful discussions, derogatory remarks, and physical discipline. The final orders also addressed the management of the children's NDIS funding and the parents' communication regarding the children's care and activities.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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; and7.4.3.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; and7.6.2.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.