Nicolas & Nicolas

[2021] FamCA 394

FAMILY COURT OF AUSTRALIA

Nicolas & Nicolas [2021] FamCA 394

File number(s):	HBC 1179 of 2020
Judgment of:	BENNETT J
Date of judgment:	18 May 2021
Catchwords:	FAMILY LAW – PARENTING – where mediated interim resolution parenting matter for young children appears to meet the needs of the parents as opposed to the needs of the children to form secure attachments – where arrangement is to be reviewed on publication of a family report by a private report writer – where final hearing date of property and parenting, in August 2021, may be vacated if the parties seek that it be vacated and the court is satisfied that there are appropriate arrangements for children in the meantime.
Number of paragraphs:	12
Date of hearing:	18 May 2021
Place:	Hobart
Counsel for the Applicant:	Ms Eddington
Solicitor for the Applicant:	Ogilvie Jennings
Counsel for the Respondent:	Mr Foster
Solicitor for the Respondent:	Murdoch Clarke
Counsel for the Independent Children's Lawyer:	Ms Watson
Solicitor for the Independent Children's Lawyer:	Legal Aid Commission of Tasmania

ORDERS

HBC 1179 of 2020
BETWEEN:	MS NICOLAS Applicant
AND:	MR NICOLAS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	18 MAY 2021

BY CONSENT IT IS ORDERED, UNTIL FURTHER ORDER

1.THAT Orders 8-14 of the Orders made in these proceeding on 18 December 2020 be discharged.

2.THAT the spend time arrangements in paragraph 3 and 4 of this Order commence on 24 May 2021.

3.THAT X born … 2018 and Y born … 2018 (“the twins”) live with the mother and spend time with the father each alternative fortnight as follows:

(a)Week 1 -

(i)Monday 9.00am to 3.30pm with the mother to deliver the twins to the father’s home at the commencement of time and collect the twins from the father’s home at the conclusion of time;

(ii)Wednesday 9.00am to 3.30pm with the mother to deliver the twins to the father’s home at the commencement of time and collect the twins from the father’s home at the conclusion of time;

(iii)Friday from the conclusion of preschool at 4pm to 9.00am Saturday, with the father to collect the twins at the commencement of time from preschool (or if a non school day from the mother’s home) and return the twins to the mother’s home at the conclusion of time.;

(iv)Sunday 3.30pm to Monday at 3.30pm with the mother to deliver the twins to the father’s home at the commencement of time and collect the twins from the father’s home at the conclusion of time, .

(b)Week 2-

(i)Wednesday 9.00am until 3.30pm with the mother to deliver the twins to the father’s home at the commencement of time and collect the twins from the father’s home at the conclusion of time;

(ii)Saturday 3.30pm until Sunday 3.30pm with the mother to deliver the twins to the fathers home at the commencement of time and collect the twins from the fathers home at the conclusion of time.

4.THAT Z born … 2020 live with the father and spend time with the mother each alternative fortnight as follows:

(a)Week 1

(i)Monday from 3.30pm until the following day at 3.30pm with the mother to collect Z from the father’s home at the commencement of time and the father to collect Z from the mother’s home at the conclusion of time;

(ii)Thursday 9.15am to 3.30pm with the father to deliver Z to the mother at the commencement of time and collect Z from the mother at the conclusion of time;

(iii)Saturday 9.00am until the following day (Sunday) at 3.30pm, with the father to deliver Z to the mothers home at the commencement of time and the mother to return Z to father at conclusion of time;

(b)Week 2

(i)Monday at 3.30pm until the following day (Tuesday) at 3.30pm with the mother to collect Z from the father’s home at the commencement of time and the father to collect Z from the mothers home at the conclusion of time;

(ii)Thursday at 9.15am until 3.30pm with the father to deliver Z to the mother at the commencement of time and collect Z from the mother at the conclusion of time;

(iii)Saturday 9.00am at 3.30pm with the father to deliver Z to the mother at the commencement of time and the mother to return Z to the father at conclusion of time.

5.THAT Notwithstanding paragraph 3 and 4 herein the following apply for special days:

(a)For the twins birthday in 2021 the twins and Z will spend time with the father from 4pm until 6pm with the mother to deliver and collect the children from the father’s home.

(b)For Z’s birthday in 2021 the twins and Z will spend time with the mother from 3.30pm until 5.30pm with the mother to collect from the father at the commencement of time and the father collect from the mother at the conclusion of time.

(c)For Mother Mary’s day (15 August 2021) with the father to return the twins and Z to the care of the mother at 9am and the father collect Z at 12.30pm, with the twins to remain in the care of the mother.

6.THAT unless otherwise agreed in writing each parent is restrained from entering the house where the other parent is residing.

7.THAT paragraphs 17 and 18 of the Order of 18 December 2020 be discharged.

8.THAT each parent will ensure that they have all of the essential items for the children in their home.

9.THAT the parents will do all things necessary to enrol X at G school in J Street and to enrol Y in H school in J Street.

10.THAT within 7 days the father is to provide the mother with a copy of Z’s birth certificate.

IT IS FURTHER ORDERED BY THE COURT THAT:

11.The matter remain listed for final hearing before me on 30 August 2021.

12.By not later than 12.00pm on Tuesday 8 June 2021 the husband comply with paragraph 7 of the Order made on 11 March 2021 by filing and serving an affidavit in which he confirms that the contents of the document filed on his behalf on 1 December 2020 is true and correct in every particular AND IT IS NOTED that the Court was this day informed by the husband’s solicitor that the document relied upon by the husband is true and correct in every particular as to his evidence and his responses to the wife’s evidence.

13.By not later than 12.00pm on Tuesday 16 June 2021 the husband comply with paragraph 6 of the Order made on 11 March 2021 and he forthwith cause a copy of any documents previously sent to the practitioners for the wife to be sent to the Independent Children's Lawyer.

14.For the purpose of the final hearing the husband has permission to rely on the evidence filed by him pursuant to paragraph 6 of the Order made 11 March 2021 (as amended) as a component of his evidence in chief.

15.The matter be mentioned before me at 9.00 am on 21 July 2021 for review of the readiness of the matter for trial and that the parties, through the Independent Children's Lawyer, have permission to obtain an administrative adjournment of this mention in the event that the report of Dr F has not been received by 14 July 2021.

16.For the avoidance of doubt, the family report provided for in paragraph 11 of the Order made on 11 March 2021 is to proceed and it is anticipated that the report will be published to the parties by not later than 14 July 2021.

17.That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

AND IT IS NOTED BY THE COURT

A.That, in the event that a party fails to attend a hearing or defaults in the filing of documents or things required of him/her, the Court may proceed to determine the matter without any input by the non-attending or defaulting party.

B.That the parties intend to review these interim parenting arrangements at the end of 2021 with a view to agreeing upon further variations to commence in January 2022 and for the purpose of such review the parents shall participate in a family dispute resolution process.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nicolas & Nicolas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

1. This matter comes before me as an adjourned return date for determination of interim parenting matters in anticipation of a final hearing of property and parenting matters allocated for 30 August 2021.  The matter proceeded on the courts MSTeams platform.  There are three children, all of whom were conceived with the assistance of in vitro fertilisation using donor ovum from a single donor in Country D and the father’s genetic material.  X and Y are twins and they are nearly three years old.  Z, the boy, is nearly one year old. 

2. Until approximately May 2021, this was an intact family of the father, mother and the twins.  In May 2020, the father travelled to Country D for the purpose of collecting Z shortly after his birth.  It is said that the mother’s care of the twins and travel restrictions imposed for the pandemic prevented the mother from accompanying the father.  Whilst out of the country, the father advised the mother that their marriage was over and it appeared, whether or not disclosed at the time, (I can’t recall), that he had formed a new relationship with someone overseas. 

3. The father returned to Australia bringing Z with him at such time as he was refused permission to remain in Country D.  The mother, in the meantime, had instituted proceedings in this Court seeking certain injunctive relief in relation to property matters.  Orders were made which now preclude the father from – and, indeed, the mother – from leaving Australia or from taking any of the subject children out of the Commonwealth of Australia. The mother first had contact with Z on 8 December 2020 when the father returned to Australia.  Z was, by that stage, 4 months old.

4. On 11 March 2021, the matter came before me and was allocated the final hearing date.  I also ordered that there be a family report prepared by a private family report writer, Dr F.  I directed that particular emphasis be placed on the circumstances in which the children had resided separately, and that finds expression in paragraph 11(d) of the Order.  An Independent Children’s Lawyer was also requested.  Mr Fitzgerald has since been appointed the Independent Children’s Lawyer and is represented today. 

5. The matter was put over for the determination today of any outstanding interim parenting issues.  In the interim, the parents have attended a private mediation with Ms B on 7 May 2021 and reached an accommodation about interim parenting matters.  It is clearly a resolution informed by a further section 11F assessment which was conducted by Ms C, family consultant, arising out of interviews on Friday 16 April 2021.  That assessment is dated 19 April 2021 and has been published.  My preliminary view is that the section 11F assessment recommendations are problematic.  That said, I acknowledge the evidence of the family consultant is not tested.

6. The interim parenting arrangement upon which the parents agree provides for the children to be together for considerable periods on a two-week cycle.  I have made known to the parents and to their practitioners that I have grave misgivings about how beneficial a parenting arrangement in these terms may be for the children and that I consider that as a matter of urgency there should be some further expert assessment of the implications for the children of moving between households with this sort of frequency for any extended length of time.  It seems to me that this accommodation meets the parents’ needs, inasmuch as neither cedes any further time to the other and it brings about some position of equality.  I doubt, however, that it meets the needs of the children.

7. The unusual circumstances of Z’s retention by the father in Country D for some months is a troubling dynamic both at this interim stage and, likely, on a final determination.  The motivation and actuality of the separation of siblings makes this case complex and I am relieved that the parents had the foresight to arrange to have the experienced input of Dr F in a forthcoming family report.  It occurs to me that what may have been possible in December 2020, in terms of bringing the children together, may not now be possible in May 2021, or may cease to be possible in August 2021 or next year.  In this matter, delay may be injurious to the children’s emotional wellbeing.

8. It seems that the parties were amenable to this interim arrangement remaining in place until January next year.  My feeling is that would probably be too long, but I stand to be informed by the expert evidence of Ms F once that evidence is to hand and tested. 

9. Whereas I have allocated the hearing of this matter on the 30th of August 2021, I make it clear to the parties that the interests of the children will be the paramount consideration as to whether or not that trial goes ahead.  If it appears that a longer period until the final hearing would render the Court better informed in relation to what is in the children’s best interest, then I would be amenable to adjourning that matter to next year.  However, we would need to see what is in Dr F’s report first, if not have the contents of that report tested by the process of limited cross-examination on an interim basis. 

10. There is also a property case, and I understand, from fairly extensive discussions between counsel and myself today, that that does not seem to be problematic.  The father’s case is that he does not have the capacity for gainful employment, although he does have the capacity, he says, to parent three children unassisted.  All of the medical evidence in relation to the father’s incapacity was to be filed by 12 April 2021 and Mr Foster has today obtained an indulgence extending that date by some three weeks. 

11. I won’t make directions in anticipation of the hearing on 30 August because I do not want the parties to spend any further money between now and the publication of Dr F’s family report.  The parties must be advised, though, and be mindful of the fact, that come the next mention date, they may be required to prepare for trial with some urgency. 

12. I make orders in the terms of the minutes.  This arrangement reflects the parent’s mediated agreement.  I have serious reservations about the suitability of this arrangement for the children in terms of attachment and childhood development but there is no expert social science evidence supportive of my concerns at this time and all parties seek orders in the terms submitted.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

Associate:

Dated:       15 June 2021