Lorenz & Lorenz
[2021] FedCFamC1F 188
Federal Circuit and Family Court of Australia
(DIvision 1)Lorenz & Lorenz [2021] FedCFamC1F 188
File number(s): SYC 7323 of 2018 Judgment of: ALTOBELLI J Date of judgment: 12 November 2021 Catchwords: FAMILY LAW – PARENTING – Competing applications for review of interim orders made by a Senior Registrar – Applications dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA
Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 1 September 2021
Cases cited: Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Division: Division 1 First Instance Number of paragraphs: 57 Date of last submission/s: 6 August 2021 Date of hearing: 30 July 2021 Place: Sydney Counsel for the Applicant: Ms Christie SC Solicitor for the Applicant: Reid Family Lawyers Counsel for the Respondent: Ms Gillies SC Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
SYC 7323 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LORENZ
Applicant
AND: MR LORENZ
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
12 November 2021
THE COURT ORDERS THAT:
1.The Application in a Case filed by the Applicant on 2 June 2021 seeking a review of the decision of Senior Registrar McGrath is dismissed.
2.The Response to an Application in a Case filed by the Respondent on 19 July 2021 seeking a review of the decision of Senior Registrar McGrath is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lorenz & Lorenz has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Introduction
This case is about two children: X, who is six, and her brother Y, who is four. These reasons for judgment explain why the application made by both of the children’s parents are dismissed, thus leaving in effect the orders made by a Senior Registrar of this Court on 13 May 2021.
Background
Both parents are 40 years old. Their relationship commenced in 2007 and they married in 2008. The parents and the children have close connections to New Zealand, Country B and Australia. They relocated to Australia in April 2018. The relationship ended shortly thereafter. The present proceedings commenced in November 2018. The first interim parenting orders were made on 5 December 2018 at a time when the children were approximately three and a half and one and a half years old respectively. These orders provided for the children to spend four nights each fortnight in the father’s care, in addition to time during the day. The parents and children all live in the same house, but in separate areas. It seems that, for all practical purposes, whilst the children understand that their parents live in separate areas of the house, they may not understand that their parents have separated.
On 1 April 2021 the father filed an Application in Case in which he sought that the children spend increased time with him on a graduated regime until an equal shared care arrangement was implemented on a five night, two night fortnightly basis. The mother also proposed five nights each fortnight, but opposed any extension to this.
On 13 May 2021 the Senior Registrar made orders the effect of which were to immediately increase the father’s time to five nights per fortnight. The learned Senior Registrar’s orders are reproduced in Schedule A to these reasons. The time the children spend with their parents during the school term in stage one is depicted in the following diagram:
From the commencement of Term 3 2021, the time is to increase to six nights per fortnight during the school term, which is depicted in the following diagram:
The learned Senior Registrar had the benefit of a single joint expert report from Dr C dated 5 May 2021.
On the 2 June 2021 the mother filed an Application in a Case in which she sought a review of the learned Senior Registrar’s decision. The application came before me on 30 July 2021. The order proposed by the mother is reproduced in Schedule B to these reasons. In short, she sought to maintain, but not increase, the children spending five nights a fortnight with their father, but in a different configuration to that ordered by the learned Senior Registrar. The mother’s proposal is depicted in the following diagram:
The father also sought different orders, and his minute is reproduced in Schedule C to these reasons. In short he proposed that in stage one the children spend five nights each fortnight with him until Term 1 2022, then increasing to six nights each fortnight until Term 2 2023. Thereafter, he sought equal week-about time. Stage one of the father’s proposal is depicted in the following diagram:
Stage two of the father’s proposal is depicted in the following diagram:
The final stage of the father’s proposal is depicted in the following diagram:
The evidence before the court
In support of her case, the mother relied on the following documents:
(a)Her Application in a Case filed 2 June 2021;
(b)Her Affidavit filed 30 June 2021;
(c)The single expert report prepared by Dr C dated 5 May 2021; and
(d)Her amended minute of order.
In support of his case, the father relied on the following documents:
(a)His Response to an Application in a Case filed 19 July 2021; and
(b)His Affidavit filed 19 July 2021; and
(c)The single expert report prepared by Dr C dated 5 May 2021;
(d)His minute of order; and
(e)His response to the mother’s amended minute of order filed 6 August 2021.
The applicable law
Rule 14.07 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) sets out how a review of a Registrar’s decision should be conducted:
(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
There is a helpful note that reads:
In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
Subrule 2 details what evidence may be received by the Court:
(2) The court may receive as evidence:
(a)any affidavit or exhibit tendered in the first hearing; or
(b)any further affidavit or exhibit; or
(c)the transcript (if any) of the first hearing; or
(d)if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
The applicable law in relation to interim parenting applications is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode (2006) FLC 93-286 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The report of Dr C
Dr C is a clinical psychologist who met with the parents and the children on 6 and 7 April 2021. Her report is dated 5 May 2021. Dr C’s evidence is the only independent and expert evidence before the Court. Whilst this evidence has not been tested in cross examination, none of the other evidence before the Court has been so tested and the Court is nevertheless entitled to rely upon it (see, e.g., Franklyn & Franklyn [2019] FamCAFC 256). Given the independence and expertise of Dr C’s report, this evidence will receive considerable weight in this interim hearing.
Dr C had the benefit of not only meeting the family in person, but observing their interactions with each other. She observed that there was open interaction between both parents and the children.
In the interview with the mother Dr C noted that: “At numerous times throughout the interview, she made unsolicited and had very negative commentary about the father, and often deflected direct questions about her behaviour by referring to the father instead.” Despite this, the mother later made comments to the effect that she and the father got on well together and that their relationship was largely amicable. In relation to post-separation parenting arrangements Dr C records her comments as follows:
Ms Lorenz made numerous comments about the fact that she and Mr Lorenz get on very well and that their relationship is largely amicable. She said there has been a great deal of flexibility with respect to the children's arrangements. She reiterated that they have been on family holidays together and have flexible arrangements with the children. She said that although the father was “initially against” the nesting arrangement, he has now come to accept it and understands that it is in the children's best interests.
Referring again to the mother’s comments about the relationship between the parents, Dr C records:
…they are collaborative and work well together. She said it was quite humorous to many people to know that both she and the father travel to Family Court proceedings together, wish one another well and then travel home together despite the proceedings. She said that various friends and colleagues have suggested that they should simply “sort out their issues together” or reconcile.
Nonetheless, the mother had a number of concerns about the father’s parenting capacity including his lack of duty of care and basic skills such as cooking and housekeeping. There was a measure of criticism about the father encouraging the children to do more activities, and with his preoccupation with healthy food. Nonetheless, when Dr C asked the mother about the father’s positive attributes she described him in very complimentary terms including stating that he loves the children and that they love him and they need to spend regular time together. However the mother did not think that the children should be exposed to any further changes any time soon. Indeed she felt quite strongly that the children could not cope with any further time away from her and they could not cope with longer stretches of time with their father.
When the father was asked about his relationship with the mother, he acknowledged that it was a very positive one for many years, particularly before they had children. The marriage deteriorated before separation. Nonetheless, since separation Dr C records that the father “thinks that his relationships with the children have improved dramatically … In part, he said that this is because he has been able to spend independent time with children without the mother’s interference”.
The father was able to observe that he and the mother had different parenting styles but nonetheless he did not have any significant concerns about her capacity to love and care for the children. He described her as kind, attentive and loving towards the children. He said that the mother tends to “helicopter parent” the children more than he does. He described his communication with the mother as generally good, reporting that they send each other updates about the children, but he acknowledged that the mother sends him more messages than he does to her. The father thought that he and the mother communicate well enough that the children seem to be unaware of any tension between them and talk happily about their mother in front of him, and that he speaks positively about her also.
The older child, X, was interviewed and Dr C records:
Individually X spoke very positively about her parents. She said that what she most likes about her mother is that she hugs her very tightly. She said that she most likes about her father is that he is a good cook and that he can cook scrambled eggs very well. She spoke with warmth and positivity about her parents being involved in all aspects of her care including taking her to school, looking after her when she is sick, helping her get to sleep and having fun with her. She did not have any wishes for either of her parents to change in any way. She expressed no fear or concern about either parent.
Dr C observed the children with both parents. From the Court’s perspective the only remarkable thing about the observations is how positive they were with both parents. The Court notes that there is clearly nothing surprising in this regard about the children’s relationship with their mother. In relation to their father both children were very affectionate with him and he was attentive and appropriate towards the children although, Dr C observed, he tended to allow them to interact more independently than the mother had.
Dr C observed:
I noted that the parents were cooperative, communicative and appeared to function amicably in front of the children. For example, when it was time to pack up the children’s belongings, Ms Lorenz assisted organised the children’s belongings, with assistance from Mr Lorenz. The children appeared to be relaxed and comfortable with both parents present. They were also comfortable transitioning between each parent.
Dr C’s evaluation commences at line 728 of her report. She thought that both parents had many positive parenting attributes and have largely shielded the children from conflict. They both demonstrated a strong motivation to provide their children with optimal outcomes and experiences. She records that the children have healthy, secure and positive relationships with each of their parents and the parents appear to be in agreement that they should each have meaningful involvement in the children’s lives. The children have meaningful relationships with each parent, and Dr C’s view was that each parent makes a significant contribution to the children’s sense of self, stability and identity. The children love each of their parents, and rely on them for almost every aspect of their care. The children are not aware that their parents have separated, in the sense that the adults understand this, and have a strong expectation that both their parents love them and fulfil a foundational role in their lives.
Dr C observed that “the children have a very positive, healthy and strongly established attachment relationship with their mother”. They find her “safe, kind and loving”. However, Dr C notes:
Having said that, I think that Ms Lorenz herself appears to have some element of anxiety with respect to her vigilance regarding the children. For example, she said that she always worries about the children and wakes up at night frequently to check on them. I note that in her interview with me and in her material the mother was preoccupied with themes of the children not coping and not being able to manage change. However, in my view the children are thriving, resilient and coping very well.
Dr C further records:
I have formed the view that the mother scrutinises the children’s behaviour and is overly focused on analysing and interpreting even minor variance in the children’s reactions and responses. I think that the mother assumes the children are fragile and need to be protected from adversity in a manner which is inconsistent with their presentation. I am concerned in this scenario that the mother will encourage regressive behaviours and have difficulty accepting that the children are thriving and are ready for more independence and can cope with minor adversity.
Dr C believed that “the children have a close, positive, secure and well-established attachment relationship with the father”, are able to be soothed by him, and regard him as a stable and loving adult in their lives. Dr C found no indication that the father was not capable of attending to the children’s needs in a developmentally appropriate manner and thought that his parenting style orients the children towards autonomy, independence and resilience. He impressed her as being a thoughtful, responsive man who was attuned to the children’s needs.
One of the important issues in this case is the capacity of the children to manage separation from either parent. In this regard Dr C states, at lines 820–849:
The capacity of the children to manage separation from either parent is developing and rapidly changing.
In my view, the arrangements to date have been developmentally appropriate for children and aligned with the need to balance continuity of care with each parent and their capacity to manage separation from each parent.
I have carefully considered the mother’s concerns that the children are developmentally struggling and that for them to spend further time away from her would place them at risk.
I think that there are fundamental errors in this assessment. Both children present as developmentally robust, psychologically healthy and with secure attachments with both parents. The parents have quite different parenting styles, and each style elicits a different response from the children. With the father, the children exhibit more robustness and a preference for independence. With the mother, the children exhibit more emotional expression and may have a preference for dependence of care. Neither of these outcomes or behaviours are pathological, they simply reflect different responses to the relative different personality and parenting styles of the parents.
Further, I think that the mother has underestimated the degree to which the children derive developmental benefit from their time with their father. Mr Lorenz engages kindly and warmly with the children and has positive parenting attributes. My view is that the mother’s critiques of the father are spurious and unwarranted.
I think that various behaviours of the children, including X’s bedwetting and Y’s reluctance to attend preschool, are not indicators that the children are not coping and are well within the range of normal for children of their age. Children who are not coping with parenting arrangements typically present as distressed, developmentally regressed, overly consumed or focused on adult issues and unable to properly attend to the tasks of childhood. There is absolutely no indication of any of these factors with X and Y. For these reasons, although I understand that the children will show developmental regressions from time to time, I consider that Y and X are healthy and happy children who are progressing very well and who have age-appropriate capacity to separate from either parent.
I think that both children would be able to manage a gradual increase in time with their father and that such time would benefit them both.
Moreover, she found the father’s parenting capacity to be very good in terms of meeting their emotional and intellectual needs.
There is an important passage at lines 893–900:
In my view the children have benefited from the consistent parenting arrangements that have been in place since the interim parenting orders have come into effect. This structure has allowed the children and parents to have structure and predictability in their weekly arrangements. Although it would be preferable to make orders that serve the children in the long term, and to avoid further litigation, the children’s needs and the parents’ circumstances are likely to change and need further refinement. However, I would be concerned if the parents continued to litigate and expose the children to protracted proceedings with the concomitant risk that the children could become involved in the parental dispute.
In effect Dr C was saying, from this Court’s perspective, that the parenting arrangements for these children were a work in progress. She expressed caution about rushing to finality. The Court infers that Dr C was appropriately cautious about the future of the current residential arrangements of this family. It was inevitable that the current nesting arrangement would, in the fullness of time, change. She anticipated the need for further refinement of the orders. Dr C was, once again appropriately, concerned about the impact of the parental conflict on the children should the proceedings become protracted.
Nonetheless, Dr C was clearly impressed by the parents’ “highly functional and positive co-parenting arrangement” and their ability to resolve conflict. She was concerned about the mother’s challenges in adapting to post-separation parenting which involved some relinquishment of her role as the children’s primary parent.
In Dr C’s opinion the parents have a very good capacity to manage equal or substantial and significant time. Indeed she was strongly of the view that the children would best be served by a parenting arrangement which ultimately allowed them to have equal or substantial time with each parent. However such an arrangement ought to develop in accordance with the children’s developmental needs. Again, the Court notes, there are two important cautionary notes which accompany Dr C’s optimism herein stated. Equal or substantial and significant time could “ultimately” be achieved, but in the fullness of time. Moreover, the timing for the implementation of such an arrangement is dependent on the children’s developmental needs.
At lines 930–931 Dr C expressed the view (no doubt in light of everything she had previously stated in her report) that the children would benefit from spending more time with their father than they currently spend. At lines 963–982 she explains how this would work in this case:
I would suggest that over the next 12 months that the children experience more independent time and experiences with each parent as a way of introducing them to the concept of their parents acting in a collaborative but independent [from each other] manner. I think that it is important for the future for X and Y to experience their parents making independent and authoritative decisions for them and to come to understand that their parents are separated.
I also think that the children should spend increased time with their father. The father’s proposal is that the children would very gradually spend increased periods of time with him, commencing with an increase of one night per fortnight with him and a rearrangement of the time so that the children have a reduced number of changes between their parents. In my view this arrangement is developmentally appropriate for the children and will ensure that the children are able to maintain healthy and positive relationships with each parent, without exposing them to developmental distress. I also think that the father ought to be involved with taking the children to school and preschool, rather than only being involved in collecting the children from school/ preschool.
I think that both the mother and the father provide X and Y with loving, kind and appropriate parenting. I think that the relationships are loving and of great benefit to the children. I think that the parents need encouragement to accept that they are of equal value to the children and that the children are best served when they continue to respect the parenting role of the other parent.
From the Court’s perspective this passage emphasises once again that Dr C was not suggesting a rush to final orders which would necessarily reflect equal shared care. Rather, the father’s time would gradually increase. There is a preference for a reduced number of changeovers between the parents. Developmental stress would need to be avoided.
Discussion
It is palpably obvious to the Court that the learned Senior Registrar made orders on 13 May 2021 which correctly, sensitively, and appropriately interpreted and implemented the single joint expert opinion of Dr C. The orders reflect the children spending increased time with their father, but do not progress to equal time, for the very good reasons set out by Dr C. This Court states categorically that if it had been presented with the same competing proposals as were placed before the learned Senior Registrar, it would have made the same orders.
Of course, the role of the Court is to make an order in the best interests of the children based on the evidence now placed before it in the context of the review application with its different proposals.
The mother proposes to reconfigure the children’s time with their father so that in each fortnight there are four changeovers. This is notwithstanding Dr C’s recommendation that changeovers should be reduced. Of course, for as long as the parents and children live in their current nesting arrangement, the concept of changeover is somewhat artificial. However, the Court agrees with Dr C’s caution about the long-term sustainability of this nesting arrangement. The impression the Court formed from the father’s evidence, and the submissions made on his behalf, is that a change in the future is possible, though obviously the father could not (in effect) move out to somewhere that would make it impracticable to implement the shared care arrangement that he himself proposes. Thus it is almost inevitable that the changeovers the children will experience in the future will be different to that which they experience at the moment. Dr C’s concern about reducing changeovers is appropriate.
This Court accepts the mother’s resistance to an extension of the children’s time with their father beyond that which was ordered by the learned Senior Registrar. The Court does not accept that the additional concerns raised in her evidence warrant any change to the orders made. The concerns that she raises about the children’s capacity to cope with change is something that Dr C expressly considered and, in effect, is more reflective of the mother’s anxiety, than it is of the children’s capacity to deal with change. The concerns that she raises about parental communication, the father’s parenting capacity, his availability for and attunement to the children’s needs, fall into the same category. All of these concerns are inconsistent with the objective and expert evidence provided by Dr C. Moreover, this Court can no more elevate to findings the mother’s stated concerns, than it can elevate the father’s concerns to findings. The inherent limitations of interim hearings are self-evident.
The father’s proposal to extend his time to an equal time arrangement, with respect, goes too far. In order to implement this arrangement which, the Court notes, is more consistent with a final order than an interim order, the father asks the Court to ignore the important nuances and cautionary notes contained in Dr C’s report. This Court will not do so.
Conclusion
The application and response filed by both parents are dismissed. This Court has no hesitation in finding that the orders that are in the best interests of the children are those made by the learned Senior Registrar.
The Court must express its surprise that the parents would re-litigate this issue, especially when Dr C’s report is so clear, and both parents are so well represented. There is an element of opportunism present on both sides. Dr C expressed a clear warning to the parents that although the children currently seem to be thriving, there is an ever-present threat to them of continued litigation. It is disappointing that this review application suggests they gave little heed to this warning.
By the time these reasons for judgment are published, this Court’s Family Law Case Management Central Practice Direction (“Central Practice Direction”) will have come into effect. As this is new, and signals a different approach to litigation, it is worth emphasising the purposes and core principles that are articulated in this practice direction.
Section 1 of the Central Practice Direction sets out the purposes of the Central Practice Direction as follows:
1.1 The purposes of this Central Practice Direction are to outline the core principles applicable to family law proceedings and to establish a consistent national case management system in the Federal Circuit and Family Court of Australia (the Court) that:
a. reduces unnecessary cost and delay in family litigation and facilitates proceedings being conducted with the least possible acrimony in order to minimise harm to children and families;
b. ensures the safety of families and children; and
c. achieves the overarching purpose of the family law practice and procedure provisions of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act), being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.
1.2 All other Family Law Practice Directions are to be read within the framework established by this Central Practice Direction. Parties should not commence or take steps in proceedings without first considering the principles set out in this Practice Direction.
1.3 The Court takes the overarching purpose enshrined in the FCFCOA Act seriously. Parties and their lawyers are expected to fully comply with that statutory obligation in all cases without exception, regardless of the complexity of the case or the issues in dispute, subject only to ensuring the safety of parties and children. This co-operation requires (and the Court expects) that the parties and their lawyers think about the best way to conduct their cases in accordance with the overarching purpose. The parties and their lawyers can expect that the Court will engage with them in a dialogue to achieve the overarching purpose.
1.4 The Court expects parties and their lawyers to have in mind, at all times, the cost of each step in the proceedings and whether it is necessary, and to avoid unnecessary process-driven costs and unjustified use of court resources. In everything they do, parties and lawyers are expected to approach proceedings in a manner directed towards identifying the issues in dispute and ascertaining the most efficient, including cost efficient, method of resolution or determination. This includes giving proper consideration to identifying the issues in dispute, complying with their obligation to provide full and frank disclosure in a timely manner (see Part 6.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Family Law Rules)), engaging in productive and resolution-focused communication with other parties, making appropriate admissions and pressing only issues of genuine significance. Ambit claims should be avoided and aggressive and unnecessarily adversarial conduct will not be tolerated. At all stages in the proceedings, parties must avoid filing evidence that is unnecessarily lengthy or only of limited relevance to the issues genuinely in dispute. Parties should limit the number of witnesses they rely on to those necessary to prove or disprove those issues truly requiring determination.
1.5 Any failure to comply with these requirements may attract costs orders against parties and/or practitioners and other consequences including, in appropriate cases, the drawing of adverse inferences, the making of a summary decree pursuant to section 45A of the Family Law Act 1975 (Cth) (Family Law Act), or orders providing that a matter be heard on an undefended basis.
1.6 The Court recognises that parties to family law proceedings and their children are often under significant stress and that litigation can add to that stress in addition to being costly. This Central Practice Direction aims to minimise the impact of litigation on families and children by encouraging the early and focussed resolution of family law disputes.
1.7 The safety of parties and children and protection from the consequences of abuse and violence remains a priority for the Court. No obligation or requirement in this Central Practice Direction should be taken to require parties to put themselves or their children at risk or to compromise or attempt to do so in circumstances that are unsafe or where concerns about abuse or violence compromise their ability to negotiate fair or reasonable outcomes. No part of this Central Practice Direction should be read or interpreted in a manner that is inconsistent with the prioritisation of the best interests of children and safe and sustainable outcomes for families.
1.8 Lawyers representing parties in family law proceedings must provide a copy of this Central Practice Direction to their clients prior to filing an Initiating Application or Response to Initiating Application and are requested to provide a copy to any unrepresented parties to the proceedings at the earliest possible opportunity.
(Emphasis in original)
Section 3 of the Central Practice Direction sets out the core principles in the family law jurisdiction of the Court:
3.1 The following 10 core principles underpin the exercise of the family law jurisdiction of the Court and are designed to facilitate the resolution of family law proceedings. All steps taken in proceedings before the Court, including commencement of proceedings, should follow these principles.
Core principle 1 – Risk
3.2 The prioritisation of the safety of children, vulnerable parties and litigants, as well as the early and ongoing identification and appropriate handling of issues of risk, including allegations of family violence, are essential elements of all case management.
Core principle 2 – Parties', lawyers' and the Court's obligations and overarching purpose
3.3 The overarching purpose to be achieved is to facilitate the just resolution of disputes:
a. according to law; and
b. as quickly, inexpensively and efficiently as possible.
3.4 The overarching purpose includes the following objectives:
a. the just determination of all proceedings before the Court;
b. the efficient use of the judicial and administrative resources available for the purposes of the Court;
c. the efficient disposal of the Court's overall caseload;
d. the disposal of all proceedings in a timely manner;
e. the resolution of disputes at a cost and by a process that is proportionate to the importance and complexity of the issues in dispute.
3.5 This Central Practice Direction and the Family Law Rules must be interpreted and applied in the way that best promotes the Court's overarching purpose and prioritises the best interests of children.
Core principle 3 – Efficient and effective use of resources
3.6 The Court's judicial, registrar and Court Child Expert resources are to be allocated and used efficiently to achieve the overarching purpose in the context of ensuring the appropriate handling of risks wherever they are identified as issues in proceedings.
Core principle 4 – Approach to case management
3.7 Effective case management of all cases relies on:
a. a consistent approach to the case management of like cases;
b. early triaging of matters to an appropriate case pathway, including assessment of risk; and
c. the prioritisation of both internal and external Dispute Resolution, including private mediation, Family Dispute Resolution (FDR), Conciliation Conferences and arbitration in property disputes for as many appropriate cases as possible.
Core principle 5 – Importance of Dispute Resolution
3.8 The Court encourages the use of Dispute Resolution procedures. Before commencing an action, unless it is unsafe to do so, parties are expected to make a genuine attempt to resolve their dispute, including by complying with the requirements and obligations of section 60I of the Family Law Act and the pre-action procedures as set out in Schedule 1 to the Family Law Rules. Subject to an exception applying, the Court must not hear an application for parenting orders unless a section 60I certificate has been filed.
3.9 After the commencement of an action, parties are expected to:
a. be proactive in identifying the appropriate time, and the appropriate way, in which they can participate in Dispute Resolution, either by agreement or by court order; and
b. be prepared to make and consider reasonable offers of settlement at any stage of the proceedings. Failure to do so may have costs consequences.
Core principle 6 – Non-compliance
3.10 Non-compliance with orders, Practice Directions, the Family Law Rules or the obligations imposed on parties and their lawyers to conduct proceedings in a manner consistent with the overarching purpose will be taken seriously by the Court. Non-compliance may lead to serious consequences for parties and for their lawyers including, if relevant, liberty being granted to the compliant party to proceed on an undefended basis, and/or costs orders being awarded against parties and/or their lawyers.
3.11 If, at any time during the course of proceedings, the Court considers that a party or their legal representatives have pursued or defended an Application, Response or Reply without legal foundation and/or other than in good faith or without making a reasonable and genuine attempt to resolve the issue(s) in dispute where safe to do so, the Court may:
a. refer the Application, Response or Reply to a judicial officer for consideration of dismissal or determination on an undefended basis;
b. dismiss the Application, Response or Reply;
c. dismiss all or part of the case;
d. set aside a step taken or an order made;
e. prohibit a party from taking a further step in the case until the occurrence of a specified event;
f. determine the Application, Response and/or Reply on an undefended basis;
g. adjourn the Application, Response and/or Reply to allow a party to file affidavit evidence; and/or
h. make such other orders as are appropriate, including orders for costs, which may include an order for costs against a party's legal representatives.
Core principle 7 – Lawyers' obligations about costs
3.12 Parties and their lawyers are expected to take a sensible and pragmatic approach to litigation, and to incur only such costs as are fair, reasonable and proportionate to the issues that are genuinely in dispute. Lawyers are expected to act consistently with costs estimates provided to their clients, and regularly inform their clients and the Court of the actual costs they have incurred and are likely to incur (see Part 12.3 of the Family Law Rules).
Core principle 8 – Identifying and narrowing issues in dispute
3.13 Issues in the case are to be narrowed to those issues genuinely in dispute. In particular:
a. all parties are required to make full and frank disclosure to assist the Court in the determination of the dispute or the parties in the resolution of the dispute;
b. applications should only be brought before the Court if they are reasonably justified on the material available;
c. it is expected that parties will negotiate both prior to, and at Court, in order to reach agreement about as many of the issues in dispute as possible and procedural directions required before having the matter heard;
d. when appropriate, a single expert or an assessor should be engaged to assist the parties and the Court to resolve disputes; and
e. costs consequences may flow if parties unreasonably seek to reopen issues already resolved or unreasonably agitate issues.
Core principle 9 – Preparation for hearings
3.14 Parties and their lawyers are to be familiar with the specific issues in the case and be fully prepared for court events and the final hearing in a timely manner. Parties must provide the Court with a considered and informed estimate of the expected hearing time, the number of witnesses and the specific issues to be decided.
Core principle 10 – Efficient and timely disposition of cases
3.15 The Court will act effectively and efficiently in achieving the prompt and fair disposition of pending cases, with judgments being delivered as soon as reasonably practicable after the receipt of final submissions. Where permitted by legislation, short form reasons may be utilised in appropriate cases to facilitate the expeditious delivery of judgments.
(Emphasis in original)
With the greatest of respect to the parents who otherwise in many ways bear the attributes of ideal parents, and with equal respect to their legal advisers, the review application was likely to be inordinately expensive to the parties (the Court notes both parents were represented by senior counsel) and represented an inefficient and ineffective use of Court resources, all in the context of a case where there were no issues about the safety of the parents or children, and where there was clear expert evidence. This litigation was disappointing and unnecessary and could easily be construed as having more to do with parents’ rights and interests than children’s rights and interests.
f
I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 12 November 2021
Schedule A
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY File No. (P)SYC7323/2018
BETWEEN
MR LORENZ (Applicant)
AND
MS LORENZ (Respondent)
13 May 2021
Amended Pursuant to the Slip Rule on
25 May 2021
Before SENIOR REGISTRAR MCGRATHUPON APPLICATION MADE TO THE COURT via Microsoft Teams by Ms Gillies of Senior Counsel for and with the Applicant Father AND Ms Brasch of Queens Counsel for and with the Respondent Mother.
PENDING FURTHER ORDER, IT IS ORDERED THAT:
1.That the Orders made on 5 December 2018 be discharged.
2.Pending further Order pursuant to Section 64B of the Family Law Act 1975 (Cth) (“the Act”):
Parental Responsibility
2.1That pursuant to Section 65DAC of the Act the Father and the Mother will have equal shared parental responsibility for:
2.1.1X born … 2015 (“X”); and
2.1.2Y born … 2017 (“Y”)
(collectively referred to as “the children”).
Time
2.2That the children will live with the Mother at all times they are not living with the Father pursuant to Order 2.3.
2.3That the children will live with the Father as follows:
2.3.1From the date of the making of this Order until the conclusion of the Term 2 of the 2022 school holidays (Stage 1) as follows:
2.3.1.1During the school term for the school X attends on a fortnightly basis:
a) In week one:
i.From 12pm until 7pm on Tuesday; and
ii.From 12pm on Friday until the commencement of school/pre-school or 12pm if no school/pre school on Monday; and
b) In week two:
i.From 12pm on Wednesday until 12pm on Friday.
2.3.1.2During the school holidays as calculated by reference to the school X attends and to run in the same week one and week two pattern as during school term:
a) In week one:
i.From 12pm on Thursday until 12pm on Monday; and
b) In week two:
i.From 12pm on Wednesday until 12pm on Friday.
2.3.2From the conclusion of Stage 1 and pending further order:
2.3.2.1During the school term for the school X attends on a fortnightly basis:
a) In week one:
i.From 12pm until 7pm on Tuesday; and
ii.From 12pm on Thursday until the commencement of school/pre-school or 12pm if no school/pre school on Monday; and
b) In week two:
i.From 12pm on Wednesday until 12pm on Friday.
2.3.2.2During the school holidays as calculated by reference to the school X attends and to run in the same fortnightly pattern as during school term:
a) In week one:
i.From 12pm until 7pm on Wednesday until 12pm on Monday; and
b) In week two:
i.From 12pm on Wednesday until 12pm on Friday.
2.4That notwithstanding any other Order the children live with the Father as follows:
2.4.1On Father’s Day from 5pm the day before Father’s Day until 5pm on Father’s Day;
2.4.2On the Father’s Birthday from 5pm the day before the Father’s Birthday to 5pm the day of the Father’s Birthday;
2.4.3On each of the children's birthdays:
2.4.3.1From 12pm the day before the Birthday to 12pm the day of the Birthday in odd numbered years; and
2.4.3.2From 12pm the day of the Birthday until 12pm the day after the Birthday in even numbered years;
2.4.4From 12pm on Christmas Eve until 12pm on Christmas Day in odd numbered years and from 12pm on Christmas Day until 12pm on Boxing Day in even numbered years; and
2.4.5At such other times as agreed between the parties in writing.
2.5That notwithstanding any other Order the children will live with the Mother as follows:
2.5.1On Mother's Day from 5pm the day before Mother’s Day to 5pm on Mother’s Day;
2.5.2On the Mother’s Birthday from 5pm the day before the Mother’s Birthday to 5pm the day of the Mother’s Birthday;
2.5.3On each of the children's birthdays:
2.5.3.1From 12pm the day before the Birthday to 12pm the day of the Birthday in even numbered years; and
2.5.3.2from 12pm the day of the Birthday until 12pm the day after the Birthday in odd numbered years;
2.5.4From 12pm on Christmas Eve until 12pm on Christmas Day in even numbered years and from 12pm on Christmas Day until 12pm on Boxing Day in odd numbered years; and
2.5.5At such other times as agreed between the parties in writing.
3Unless otherwise already occurring at school/pre-school, the Father will collect the children from the Mother's residence at the commencement of his time with the children and the Mother will collect the children from the Father's residence at the commencement of her time with the children.
4Either of the parties may travel interstate with the children during the periods the children are living with them during school holidays provided the travelling party provides the other party with fourteen (14) days' notice of their intention to do so including copies of return tickets, a full itinerary and contact details for the children.
5Unless otherwise agreed, the Mother shall have exclusive occupancy of 1D Street, Suburb E NSW when the children are living with her pursuant to these Orders, and the Father shall have exclusive occupancy of 1D Street, Suburb E NSW when the children are spending time with him pursuant to these Orders.
6At all other times the Mother shall have exclusive occupancy of 2D Street, Suburb E NSW, and the Father shall have exclusive occupancy of 3D Street, Suburb E NSW.
7BY CONSENT and pursuant to Part 10.4 of the Family Law Rules, orders, declarations and notations are made in terms as set out hereunder:
1.That the Father and the Mother shall attend upon child psychologist Ms F to seek her advices on how to advise the children of their parent’s separation and issues surrounding it.
2.For the purposes of facilitating that attendance each party shall contact Ms F’s offices by 5pm 14 May 2021 and ensure that they take the first mutually convenient appointment to meet with Ms F.
3.The parties shall consider the advice and recommendations given by Ms F as to how they shall communicate to the children that separation and the issues surrounding it.
4.The parties are at liberty to provide to Ms F a copy of the report of Dr C dated 5 May, 2021.
8All outstanding interim applications are otherwise dismissed.
9The matter is adjourned to Registrar Chayna on 29 June 2021 at 2.45pm for Procedural hearing.
10Orders dated 13 May 2021 have been amended pursuant Rule 17.02 of the Family Law Rules 2004 (Cth) on 25 May 2021.
IT IS NOTED THAT:
A.Order 1 herein discharges the restraint from permitting Mr G to attend upon the Former Matrimonial Home (1D Street, Suburb E NSW) and the adjacent unit at 2D Street, Suburb E NSW.
B.Orders 2.4 and 2.5 herein are by consent of both parties.
C.International
relocationtravel is not within the delegations of the Senior Registrar, therefore this issue as set out in the Mother’s application was not pressed today. Parties are advised that the Mother reserves her right to press this issue at a later stage.D.Pursuant to s.62B of the Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
E.Pursuant to s.65DA(2) of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
Schedule B
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEY
No. SYC7323 of 2018
IN THE MARRIAGE OF
MR LORENZ
(Applicant)and
MS LORENZ
(Respondent)WIFE’S PROPOSED MINUTE OF ORDER
IT IS ORDERED
1. That the orders made by Senior Registrar McGrath of 13 May 2021 be set aside.
2. That the Application in a Case filed by the husband on 1 April 2021 be dismissed.
3. That orders 8 and 16 of the orders made 5 December 2018 be discharged.
4. That the children spend time with the father as follows:
(a)In week one:
(i)From 4pm Tuesday until 4pm Wednesday; and
(ii)From 4pm Friday to 4pm Sunday
(b)In week two:
(i)On Monday from 12pm to 6pm; and
(ii)From 4pm Wednesday to 4pm Friday.
(c)On special occasions as follows:
(i)5pm Sat to 5pm Sunday on the Father’s Day weekend
(ii)5pm day before the Father’s birthday to 5pm day of the father’s birthday
(iii)12pm day before either child’s birthdays to 12pm day of either birthdays in odd years.
(iv)12pm on the day of either child’s birthdays to 12pm the day after the child’s in even years.
5.That if the children are not otherwise spending time with the mother, the spend time with the mother on special occasions as follows:
(a)5pm Saturday to 5pm Sunday on the Mother’s Day weekend
(b)5pm day before Mother’s birthday to 5pm day of birthday
(c)12pm day before either child’s birthdays to 12pm day of either child’s birthdays in even years
(d)12pm on the day of either child’s birthdays to 12pm day after the child’s birthdays in odd years
6.That the children spend time with the parents at Christmas by agreement and failing agreement:
(a) with the mother:
(i)from 12pm Christmas eve until 12pm on 25 December in odd-numbered years;
(ii)from 12pm on 25 December until 12pm boxing day in even-numbered years.
(b)With the father:
(i)from 12pm Christmas eve until 12pm on 25 December in even-numbered years;
(ii)from 12pm on 25 December until 12pm boxing day in odd-numbered years.
7.That provided:
(a)the mother gives 14 days’ notice and
(b)travel is permitted between Australia and New Zealand;
(c)the time occurs either on a weekend or in school holidays and the mother shall not remove the children from school without the father’s prior consent.
the mother be permitted to take the children to New Zealand for a period of up to 7 nights and for that purpose the father’s time be suspended unless the father travels with the mother and the children and is able to exercise his time.
Schedule C
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT SYDNEYNo. SYC7323 of 2018
IN THE MARRIAGE OF
MS LORENZ
(Applicant)
and
MR LORENZ
(Respondent)RESPONDENT FATHER’S MINUTE OF ORDER
1. That the Orders made on 5 December 2018 be discharged.
2. Pending further Order pursuant to Section 64B of the Act:
Parental Responsibility
2.1.That pursuant to Section 65DAC of the Act the Father and the Mother will have equal shared parental responsibility for:
2.1.1.X born … 2015; and
2.1.2.Y born … 2017,
(the children).
Time
2.2.That the children will live with the Mother at all times they are not living with the Father pursuant to Order 2.3.
2.3.That the children will live with the Father as follows:
2.3.1.during the school term for the school X attends from the date of the making of this Order until the commencement of term 1 2022 (stage 1) as follows on a fortnightly basis:
2.3.1.1.in week one:
a)from 12pm until 7pm on Tuesday; and
b)from 12pm on Friday until the commencement of school/pre-school or 12pm if no school/pre-school on Monday; and
2.3.1.2in week two from 12pm on Wednesday until 12pm on Friday;
2.3.2during the school term for the school X attends from the conclusion of stage 1 until the commencement of term 1 2023 (stage 2) as follows on a fortnightly basis:
2.3.2.1in week one:
a)from 12pm until 7pm on Tuesday; and
b)from 12pm on Thursday until the commencement of school/pre-school or 12pm if no school/pre-school on Monday; and
2.3.2.2in week two from 12pm on Wednesday until 12pm on Friday;
2.3.3during the school term for the school X attends from the conclusion of stage 2 as follows on a fortnightly basis:
2.3.3.1in week one from the conclusion of school or 3pm if no school on Wednesday until the conclusion of school or 3pm if no school on Monday; and
2.3.3.2in week two from the conclusion of school or 3pm if no school on Wednesday until the conclusion of school or 3pm if no school on Friday;
2.3.4during the Term 1, 2 and 3 school holidays, as calculated by reference to the school X attends, for half of the school holiday period being the first half if the Mother spent the last weekend of the school term with the children and the second half if the Father spent the last weekend of the school term with the children;
2.3.5during the Term 4 school holidays, as calculated by reference to the school X attends:
2.3.5.1weeks 1, 3, 5 and 7 if the Mother spent the last weekend of Term 4 with the children; and
2.3.5.2weeks 2, 4, 6 and 8 if the Father spent the last weekend of Term 4 with the children;
2.3.6on Father’s Day from 5pm the day before Father’s Day until 5pm on Father’s Day;
2.3.7on the Father’s Birthday from 5pm the day before the Father’s Birthday to 5pm the day of the Father’s Birthday;
2.3.8on each of the children's birthdays:
2.3.8.1from 12pm the day before the Birthday to 12pm the day of the Birthday in odd numbered years; and
2.3.8.2from 12pm the day of the Birthday until 12pm the day after the Birthday in even numbered years;
2.3.9from 12pm on Christmas Eve until 12pm on Christmas Day in odd numbered years and from 12pm on Christmas Day until 12pm on Boxing Day in even numbered years; and
2.3.10at such other times as agreed between the parties.
2.4.That notwithstanding Order 2.3 the children will live with the Mother as follows:
2.3.11on Mother's Day from 5pm the day before Mother’s Day to 5pm on Mother’s Day;
2.3.12on the Mother’s Birthday from 5pm the day before the Mother’s Birthday to 5pm the day of the Mother’s Birthday;
2.3.13on each of the children's birthdays:
2.3.13.1from 12pm the day before the Birthday to 12pm the day of the Birthday in even numbered years; and
2.3.13.2from 12pm the day of the Birthday until 12pm the day after the Birthday in odd numbered years;
2.3.14from 12pm on Christmas Eve until 12pm on Christmas Day in even numbered years and from 12pm on Christmas Day until 12pm on Boxing Day in odd numbered years; and
2.3.15at such other times as agreed between the parties.
2.5.All changeovers which do not occur at the children’s school/pre-school will occur such that the Father will collect the children from the Mother’s residence at the commencement of his time with the children and the Mother will collect the children from the Father’s residence at the commencement of her time with the children.
2.6.That for the purposes of calculating the school holiday periods in accordance with the provisions of these Orders:
2.6.1for Clause 2.3.4 the school holiday period will be from the conclusion of school (or 3pm if the children do not attend school) on the last day of mandatory pupil attendance of the school term until the conclusion of school (or 3pm if the children do not attend school) on the first day of mandatory pupil attendance of the next school term, referable to the school that X attends, and:
2.6.1.1if there are an odd number of nights during the school holiday period, changeover will occur at 6pm on the day which gives the parent spending the second half of the school holiday period one extra night with the children; or
2.6.1.2if there are an even number of nights during the school holiday period, changeover will occur at 12pm on the day which gives each parent the same number of nights with the children;
2.6.2for Clause 2.3.5 the school holiday period will be from the conclusion of school (or 3pm if the children do not attend school) on the last day of mandatory pupil attendance of Term 4 until the conclusion of school (or 3pm if the children do not attend school) on the first day of mandatory pupil attendance of Term 1, referable to the school that X attends, and changeover will occur at 3pm every seven days (or part thereof until the conclusion of school (or 3pm) on the first day of mandatory pupil attendance of Term 1).
2.7.Either of the parties may travel interstate with the children during the periods the children are living with them during school holidays provided the travelling party provides the other party with 14 days’ notice of their intention to do so including copies of return tickets, a full itinerary and contact details for the children.
2.8.If it looks like restrictions between New South Wales and another State or Territory are imminent, and the Mother and/or Father are in another State and/or Territory with the children, each party will make immediate arrangements to return the children to New South Wales.
2.9.That while ever the Father is living at 3D Street, Suburb E, the Father shall have exclusive occupation of 3D Street, Suburb E and 1D Street, Suburb E when the children are living with him pursuant to these Orders.
2.10.That while ever the Mother is living at 2D Street, Suburb E, the Mother shall have exclusive occupation of 2D Street, Suburb E and 1D Street, Suburb E when the children are living with her pursuant to these Orders.
3That the Mother’s Application in a Case filed on 2 June 2021 be dismissed.
4Pursuant to Section 117(2) of the Act, the Mother pay the Father’s costs of and incidental to these proceedings.
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