NIELSEN & SPRINGER

[2017] FamCA 755

FAMILY COURT OF AUSTRALIA

NIELSEN & SPRINGER [2017] FamCA 755

FAMILY LAW – CHILDREN – Interim orders – Spend time with – Where the father seeks an increase in time with the children – Where the mother is opposed to the orders sought by the father – Consideration of the best interests of the children – Consideration of the parties’ parenting relationship – Where an order is made for an increase in the father’s time with the children

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 62G

APPLICANT: Mr Nielsen

RESPONDENT: Ms Springer

FILE NUMBER: ADC 1483 of 2017

DATE DELIVERED: 25 September 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Berman J

HEARING DATE: 20 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Anderson

SOLICITOR FOR THE APPLICANT: CG Family Law

COUNSEL FOR THE RESPONDENT: Ms Lee

SOLICITOR FOR THE RESPONDENT: Georgina Parker Lawyers

IT IS ORDERED UNTIL FURTHER ORDER:

1. That B born … 2008, C born … 2010 and D born … 2012 (“the children”) live with the mother.

2. That the children spend time with the father:

   a)each alternate weekend from the conclusion of school, kindergarten or early learning on Friday to the commencement of school, kindergarten or early learning on the following Monday PROVIDED THAT if the Friday or the Monday is not a school, kindergarten or early learning day then the commencement of time shall be 4 pm and the conclusion of time shall be 10.30 am;

   b)on the intervening week from the conclusion of school, kindergarten or early learning on Thursday to 10 am on the following Friday PROVIDED THAT if the Thursday or Friday is not a school, kindergarten or early learning day then the commencement of time shall be 4 pm and the conclusion of time shall be 10.30 am;

   c)during the October 2017 and December/January 2017-2018 school holidays the father’s time on each alternate weekend shall be extended to 4 pm on the following Tuesday morning;

   d)from 3 pm on 25 December 2017 to 3 pm on 26 December 2017 PROVIDED THAT the father’s time will be suspended from 3 pm on 24 December 2017 to 3 pm on 25 December 2017;

   e)Such other time as the parties may agree.

3. That the father be entitled to receive school reports, school photos and school newsletters from the children’s school, kindergarten and early learning centre.

4. That the father be entitled to attend school and kindergarten/early learning functions, concerts, exhibitions and sports days.

5. Each party is to notify the other as soon as is reasonably practicable in the event of a medical emergency or serious illness affecting the said children or any of them during any time that the children are in his or her care.

6. That each of the parties are hereby authorized to obtain any information from the said children’s treating medical or allied health practitioners as may be requested by them including but not limited to information as to the said child or children’s diagnosis, prognosis or treatment.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1483  of 2017

Mr Nielsen

Applicant

And

Ms Springer

Respondent

INTRODUCTION  

1. By Initiating Application filed 12 April 2017, Mr Nielsen (“the father”) seeks orders that the parties have equal share parental responsibility for B born in 2008, C born in 2010 and D born in 2012 (“the children”).

2. He seeks that the children live with each of the parties on a week about basis.

3. By Amended Response filed 15 September 2017 Ms Springer (“the mother”) seeks sole parental responsibility for the children, that they live with her and spend time with the father upon such terms and conditions as the Court may order.

4. The mother had previously sought orders permitting the relocation of the children from Australia to the United States of America (“USA”). The amended response provides for a different order namely, that she be at liberty to travel with the children to the USA each year for a maximum of 30 days.

5. On 23 May 2017 an order was made by consent until further order that provided for the following:-

   (1)That the children live with the mother.

   (2)That they spend time with the  father as follows:-

   (a)Each Sunday from 9.00 am to 4.00 pm; and

   (b)Each alternate Friday from 3.00 pm to 6.00 pm for B and C and from 2.00 pm to 6.00 pm for D.

6. The father filed an Amended Application in a Case on 3 July 2017 seeking orders that the children live with him on a four week rotating roster as follows:-

   Week 1

   From after school Thursday (or 4pm) to commencement of school on Tuesday in week 2.

   Week 2

   From 6pm on Saturday to commencement of school on Monday in week 3.

   Week 3

   From after school (or 4pm) on Thursday to 8:30am on Sunday;

   Week 4

   From 12noon on Sunday to the commencement of school (or 8:30am) on Tuesday in week 1.

7. The net effect of the orders sought is that over a four week period the children would spend seven nights with the father in the first fortnight and five nights in the second fortnight.

8. He also seeks orders in relation to the arrangements over Christmas and for Father’s Day and Mother’s Day in each year.

9. The parties are also in dispute in respect of the mother’s application to take the children for a holiday to the USA and the mechanics of obtaining, renewing and holding the children’s passports.

10. The interim orders sought by each of the parties in respect of the children’s ability to travel from the Commonwealth of Australia, but in particular to the USA have been listed for hearing on 6 December 2017.

11. By Response to an Application in a Case filed 15 September 2017, the mother seeks orders that the children spend time with the father as follows:-

    (a)each alternate weekend from 9 am on the Saturday until 4 pm on the Sunday;

    (b)each alternate Wednesday from 3 pm to 6 pm;

    (c)from 2 pm on Christmas Day in 2017.

12. The mother did seek orders that the father complete a two day course to assist parents in better understanding children with Autism.  That order was not pressed.

13. The mother does not resist and indeed promotes the ability of the father to receive school reports, school photos and newsletters in relation to the three children, nor does she seek to interfere with his ability to attend school functions, concerts, exhibitions and sports days.

14. Both counsel agreed that at this stage it was premature for there to be a report pursuant to s 62G(2) of the Family Law Act 1975 (Cth) (as amended) (“the Act”).

15. By way of Affidavit in Reply filed 3 August 2017, the father seeks orders for property settlement.  He seeks enforcement of the binding financial agreement entered into by the parties on 3 December 2008.

DOCUMENTS RELIED UPON

1. The father relies upon the following documents:-

   (1)Amended Application in a Case filed 3 July 2017

   (2)Affidavit of father filed 12 April 2017

   (3)Affidavit of father filed 26 May 2017

   (4)Affidavit of father filed 18 September 2017

2. The mother relies upon the following documents:-

   (1)Response to Application filed 15 September 2017

   (2)Affidavit of mother filed 19 May 2017

   (3)Affidavit of mother filed 15 September 2017

SHOULD THE COURT CONSIDER FURTHER INTERIM PARENTING ORDERS?

1. The order of 23 May 2017 of Judge Young in the Federal Circuit Court (“FCC”) was an order by consent until further order.  Both counsel agreed that the interim proceedings as originally pleaded in the Initiating Application had not been dealt with comprehensively by his Honour.

2. There was a level of frustration clearly evident by the parties that the consent orders were intended to provide the most temporary of resolution in circumstances where the Court had not indicated that it would enable a more robust and comprehensive argument to be listed.

3. Following the making of the consent orders the proceedings were transferred to the Family Court of Australia.

4. Whilst it could not be said that there was significant complexity to either the parenting issues or property division, it was the mother’s position that she originally sought to relocate the children to the USA.  Whilst she has now abandoned that part of her application, I did not think it appropriate to transfer the proceedings back to the FCC.

5. Accordingly, I propose to hear and determine the competing orders sought by the parties.

THE APPLICATION

1. The father seeks orders that the children’s time be effectively shared between the parties.  The mother seeks that the children spend two nights a fortnight and some hours in the intervening week with the father.

2. Upon enquiry, the father’s counsel agreed that there was no significant foundation for the orders sought by him to be pursuant to a four week rotating roster.  The wisdom of the father’s orders was that he considered that initially the parties had reached agreement that the children’s care would be shared providing that the period that the children would be absent from one parent or the other would be restricted.  Accordingly, the proposed orders as drafted were designed on the basis that he considered they may well be acceptable to the mother.

3. The mother is a citizen of the USA.  The father is a citizen of Holland.  It appears that they commenced a relationship in Holland in early 2006, moving to Australia as a family in January 2012.

4. The father is employed as an academic.  The mother has had various employment but of recent date undertakes little or no work given what she considers are the parenting requirements arising from the needs of the children.

5. The parties separated in 2016 but remained living under the same roof until their physical separation in January 2017.

6. It appears uncontroversial that the parties have struggled to work out the ongoing parenting arrangements for the children.

7. The mother considers that she had the responsibility for the children’s primary care during the course of the relationship.

8. The father has held responsible employment in academia, was employed on a full-time basis and worked long hours during the week.  It was not uncommon for the father to work on weekends. Historically, the father had undertaken regular overseas travel in furtherance of his employment and academic status.

9. There is significant dispute between the parties as to the extent that the father was engaged in the active day-to-day care of the children.

10. Even whilst the parties lived separately but apart under the same roof, it is still the mother’s position that the care arrangements for the children had not altered.  She asserts she was primarily responsible for their day-to-day care and even when the father did engage with the children in their various activities, if their behaviour was difficult, defiant or oppositional, he would abrogate the children’s care to the mother.

11. The mother considers that the parties are not able to communicate nor have any sensible child-focussed communication.  Whilst there are allegations that each of the parties has behaved aggressively to the other, at this stage the relevance is to indicate the extent of the parental conflict.

12. The mother alleges that the father was physically violent towards her on four occasions since early 2015.  The father has made four reports to the police alleging violent or aggressive behaviour towards him by the mother.

13. The father places emphasis on an email sent by the mother to him on 19 January 2016 being Annexure “IN1” to his Affidavit filed 12 April 2017.  The email provides for a suggested schedule for each of the parties to care for the children, but is summarised in the first paragraph:-

    Here is the schedule I suggest.  If one is the leader or responsible person during a shift, it does not matter what the other parent is doing.  If we can not agree on parenting roles and decide to separate physically, you would have 3.5 full days and so would I, if that is what we decide.  So for those 3.5 days, you would be responsible for everything for three children: transport, childcare or staying home with [D], school contact, all meals, after school activities, therapy etc.  I believe it is not in the best interests of the children if they move between two houses every week, especially given their diagnoses.

14. The father relies upon the email as a clear indication that the mother was promoting a shared care arrangement and that by necessary implication must have considered that the father was able to undertake the necessary parenting duties.

15. The mother contends that notwithstanding the date of the email being 19 January 2016, it was sent on 6 August 2016.  Moreover, she says that it was not the entire email but rather only a portion.

16. She acknowledges that she created a Google calendar including the children’s therapy times and other commitments in November 2016.

17. The father annexes the calendar which he says if analysed sets out the arrangements for the children to spend time with each of the parties and delineates the responsibility of each of them for the children’s ongoing therapeutic requirements.

18. The mother contends that whilst she prepared the Google calendar, it was against the background of counselling and mediation.  Notwithstanding the calendar having been prepared, she alleges that the parties did not reach agreement and the calendar did not result in agreement.

19. To a significant extent I consider the attempts by the parties to negotiate or explore a resolution of the parenting conflict to be an irrelevant consideration.  I am not able to determine the extent to which any agreement was given effect.  Each of the parties asserts that the other spent more or less time with the children.

20. The ongoing parenting arrangements for the children must be focussed on their needs and requirements rather than those of the parties.  Even though the parties were separated at the time, if it is correct that their negotiations were made at a time they were exploring a resolution, there is now a very different landscape in which the children’s ongoing needs are to be considered.

21. Annexure “IN2” to the Affidavit of the father filed 26 May 2017 sets out an Excel spreadsheet which apparently records each day and the hours in which the father has cared for the children.  The intention in annexing the spreadsheet is to support the father’s assertion that whilst the parties were both together during the relationship and before they physically separated in January 2017, he was actively involved in the children’s care.

22. The mother’s response to the father’s interpretation to the spreadsheets is that they are misleading and she does not accept that they provide an accurate record of either the times that the children spent with the father or that if they did, it did not take place in her absence.

23. The father’s Affidavit filed 18 September 2017 sets out various text messages received from the mother by him that support his contention that between June and September 2017 the mother actively sought the father’s assistance to look after the children for additional times beyond the provisions of the order.

24. The text messages from the mother appear respectful and certainly support a favourable view of the mother’s willingness to support a relationship between the children and the father and also to recognise that in respect of the difficult behaviour of the children, his involvement may well be of assistance.

THE CHILDREN

1. B and C attend primary school and are in specialised education.  D attends early learning and kindergarten.

2. The children have been diagnosed with Autism Spectrum Disorder (“ASD”).  In addition, B has Receptive and Expressive Language Disorder and Working Memory Deficit.  C displays symptoms of Inattentive Type ADHD, Sensory Processing Disorder and Expressive Language Delay.  D has balance and coordination difficulties, poor muscle tone and a nut allergy.

3. The children receive therapy from ABA Therapists funded by the NDIS.

4. Their treatment and therapeutic intervention appears intensive.  As is clear, the extent to which the children are able to maintain education and beneficial therapy is determined by their need to be in a regulated-state.

5. Following intensive assessment, a Diagnostic Assessment Report dated 28 May 2017 confirmed that C satisfied the criteria for ASD.

6. C was previously assessed in 2016 and did not meet the criteria for ASD or ADHD at the time.  His behaviour however has deteriorated and unfortunately when an update assessment was undertaken the relevant health professionals were unequivocal in their diagnosis.  C has difficulties with attention and socialisation and strategies have been put in place both for his management within the home and also at school together with the necessary supports as may be required.

7. A report from the E Centre dated 16 May 2017 sets out the “intensive behavioural intervention” from the centre for B and D.  The programs are designed to increase skill and better manage behavioural problems.  The report speaks of the involvement of the mother in terms of parent training and that she “has demonstrated a consistent and effective approach to maintaining the ABA program ranging from hiring and manage of in-home therapists, taking a primary role in scheduling, completing requested forms and assessments and maintaining ongoing and prompt communication with the therapy team”.  The report acknowledges that the working environment has continued for a period of 12 months.

CHILD DISPUTE CONFERENCE MEMORANDUM

1. The parties were the subject of interview and assessment on 29 August 2017.

2. The family consultant noted the various allegations made by each of the parties that the other was physically violent, verbally abusive, socially controlling and coercive in conduct.  None of the allegations were admitted by either party. It was also recorded that each alleged the other may have mental health issues which could adversely impact on their ability to care for the children.  Neither party accepted that there were any mental health difficulties and the initial observation of the family consultant was that no mental health issues were obvious.

3. The family consultant confirmed the position adopted by each of the parties that their relationship with each other is virtually non-existent.  Whilst the father was not prepared to accept the descriptor of their relationship as being “toxic”, it is not controversial that the parties do not hold the other in high regard.

4. The family consultant did not agree with the father’s proposal that his care be somewhere between 35 per cent and 50 per cent.  In his recommendations for future directions the following appears:-

   It is accepted in the literature that that (sic) the success of shared care is related to the age and developmental status of the child, and an at least courteous and respectful working relationship between the carers.  Neither of these conditions applies in this matter.  Further, the children’s identified special needs are a further contra indicator of shared care as manageable for the children.  It needs to be further noted that [the father’s] proposed interim orders involve a different pattern every week, which in the writer’s view would be likely to further destabilise the children.

5. The mother generally accepts the observations of the family consultant.  The father is highly critical.

PARENTING CONSIDERATIONS

1. The father seeks orders that the parties have equal shared parental responsibility for the children.  The mother seeks orders that she have the sole parental responsibility.  There were no submissions directed to parental responsibility and I consider that at this stage there is no reason to find that the presumption of equal shared parental responsibility should be rebutted.

1. As such, I am obliged to consider whether the children should spend equal time with the parties as generally sought by the father, or if not, then significant and substantial time.

2. That consideration is informed by having regard to what is in the children’s best interests.

3. Section 60CA requires that the best interests of the children be the paramount consideration. That is met by the application of the objects of s 60B(1). I bring to account the primary and additional considerations in respect of the matters as set out in s 60CC(2) and (3). In the circumstances of this case and taking into account the allegations made by the parties against the other and the notices of risk that allege family violence, it is necessary to consider the provisions of s 60CC(2A). I have regard to the separate allegations of the parties but note that they are allegations without corroboration and in circumstances where in an interim hearing I am not able to make a finding either that a particular incident or allegation is substantiate on the balance of probabilities, or that the conduct of each of the parties is such that they present a risk to the children.

4. Each of the parties accept that whatever may be promoted by their separate allegations, within the parameter of the orders sought by the parties I am entitled to find that any risk that arises is not inconsistent with the children spending extended and overnight time with each of the parents.

5. There is little doubt that the children have a strong relationship with each of the parties.  The mother does not assert that the children do not want to see their father.  He alleges that they frequently ask to see more of him.

6. The orders promoted by the mother are not adverse to the father maintaining a meaningful relationship with the children.  The orders proposed by the father also support the importance of the mother’s relationship with the children.

7. I am satisfied that the relationship between the parties is dysfunctional.  The very nature of their conduct towards each other and the florid allegations as contained in the affidavit material is more likely to support the mother’s position and that observed by the family consultant that the parties having a toxic and dysfunctional relationship.

8. To the extent that there appears to be some attempts by the mother to communicate with the father at a civil level and even to promote him spending further and additional time with the children, it is suggestive of a softening of her position.  There is little evidence that supports a similar consideration on the part of the father.

9. There is no evidence as to the views of the children.  I am satisfied that the children have complex needs which make their management challenging and requires a clear and unwavering focus to ensure the children are regulated and emotionally stable in order to achieve the therapeutic goals both at school and home.

10. Neither party has re-partnered.  The father continues to maintain his employment, although I accept that he has now a greater level of flexibility than may have been available to him during the course of the relationship.

11. The mother is not engaged in any employment of substance other than a few hours.

12. The parties are both high functioning adults.  Their conduct towards each other and their inability to recognise how that may impact adversely upon children with special needs is regrettable.

13. Ultimately I must focus on ensuring that the best interests of the children are met and at this stage and until there is some more comprehensive assessment of the children’s current circumstances, I consider that they should remain in the primary care of the mother but spend significant time with the father.

14. There is no good reason why the father should not be better engaged in the children’s therapeutic, social and educational involvement.

15. That must be tempered with the clear finding that their relationship with each other is dysfunctional and the uncontroversial evidence that in terms of the ABA therapeutic program, the children’s school and early learning/kindergarten and the attendance of the children in respect of their medical needs at this stage it appears that the mother has undertaken those parenting obligations at the highest level.  That is not to suggest that it is beyond the ability of the father to be so engaged, but it appears to reflect the current state of care.

CONCLUSION

1. I propose to order that the children live with the mother and spend time with the father from Friday at the conclusion of school or kindergarten/early learning to the commencement of school, kindergarten or early learning on the following Monday and overnight from the conclusion of school on the intervening Thursday.

2. To enable the parties to better arrange their Christmas commitments, I propose to order that the children remain in the mother’s care from Christmas Eve to Christmas Day and then with the father from Christmas Day to 26 December 2017.

3. There is no opposition to each of the parties receiving school reports, photos and other information and also to attend at school functions, concerts and sports days.

4. I will make the usual orders to ensure that the father is able to obtain all relevant medical, psychological and other information pertaining to the management of the children.

5. The orders I propose to make appear at the commencement of these reasons.

I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 25 September 2017.

Associate: 

Date:  25 September 2017