Nielsen & Springer
[2021] FedCFamC1F 276
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Nielsen & Springer [2021] FedCFamC1F 276
File number(s): ADC 1483 of 2017 Judgment of: JARRETT J Date of judgment: 24 November 2021 Catchwords: FAMILY LAW - CHILD WELFARE – The Family Law Act 1975 (Cth) and related legislation – best interests of the child – Rice & Asplund – material change in circumstances – where the children have relocated interstate – time spent with the children’s parents interstate where one parent manages the children’s special medical needs – provision of medical information for both parents. Legislation: Family Law Act 1975 (Cth), ss 4AB, 60CC, 61DA, 62G
Cases cited: Rice & Asplund (1979) FLC 90 – 725
U v U (2002) 211 CLR 238
Division: Division 1 First Instance Number of paragraphs: 46 Date of hearing: 22 & 23 November 2021 Place: Brisbane The Applicant Litigant in person Counsel for the Respondent Mr Anderson Solicitor for the Respondent Georgina Parker Lawyers Counsel for the Independent Children’s Lawyer Ms Ross Solicitor for the Independent Children’s Lawyer Legal Aid New South Wales ORDERS
ADC 1483 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS SPRINGER
Applicant
AND: MR NIELSEN
Respondent
ORDER MADE BY:
JARRETT J
DATE OF ORDER:
24 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Except so far as they are inconsistent with these orders, orders 1 to 16 of the orders of 17 September, 2019 remain operative.
2. Paragraph 10(c) of the orders of 17 September, 2019 is suspended during 2021.
3.The children are to spend time with the respondent as agreed, and failing agreement, as follows:
(a)during school holiday periods for half of the April, July and September school holidays, such times to be agreed between the parties and, in the absence of agreement, for the first half of each of these school holiday periods;
(b)for 2 individual weeks of the Christmas school holiday period, with such times to be agreed between the parties or, in the absence of agreement, the 1st week and 4th week in odd numbered years and the 2nd and 3rd week in even numbered years, with such weeks to start and conclude on a Saturday.
4.For the purpose of these orders the school term and Christmas school holidays are deemed to commence at 9.00am on the first day after the school term ceases.3.The children are to spend time with respondent as agreed, and failing agreement, as follows in the short school holiday periods:
(a)At the end of term 1 the children will not spend time with the respondent and will have the holiday period with the applicant.
(b)At the end of term 2 the children will spend time with the respondent from the Saturday following the last day of term until the following Saturday.
(i)This end of term 2 holiday time will take place in Northern NSW or the BB Region at the respondent’s election.
(ii)Changeovers for the end of term 2 holiday time will take place with the children being collect by the respondent from the applicant at the BB Airport at 9am at the start of time and the children will be returned to the applicant by the respondent at 4pm at the conclusion of time.
(c)At the end of term 3 the children will spend time with the respondent from the Saturday following the last day of term until the Sunday 8 days later.
(i)This end of term 3 time will take place in South Australia.
(ii)Changeovers for the end of term 3 holiday time will take place at Location CC when the children arrive in South Australia. The children will fly to Adelaide airport on the earliest flight that can be booked to allow the children to arrive in Adelaide on the Morning of the 1st Saturday of the holiday period. This flight is to be booked and paid for by the respondent. The respondent will notify the applicant of the flight times no later than 14 day before the time is to commence.
(iii)At the conclusion of time the respondent will return the children to Adelaide airport at a time no earlier than 10am to fly back to New South Wales. The children’s flight to return to New South Wales will be booked and paid for by the applicant. The applicant will notify the respondent of the flight return details no later the 13 days prior to the children spending time.
(d)At the end of term 4 the children will spend time with the respondent from the Saturday following the last day of term until the following Saturday.
(i)This end of term 4 holiday time will take place in Northern NSW or the BB Region at the respondent’s election.
(ii)Changeovers for the end of term 4 holiday time will take place with the children being collect by the respondent from the applicant at the BB Airport at 9am at the start of time and the children will be returned to the applicant by the respondent at 4pm at the conclusion of time.
(e)At the end of term 5 the children will not spend time with the respondent and will have the holiday period with the applicant
4.The children are to spend time with the respondent at the end of year school holiday period for 2 weeks in South Australia as agreed and failing agreements follows:
(a)In years where Christmas Day falls on an odd numbered year being 2021 and each odd numbered year thereafter from the Saturday following the last day of school until the 3rd Saturday of the Holiday period.
(i)For changeover for the end of year holiday period holiday time will take place at Location CC when the children arrive in South Australia. The children will fly to Adelaide airport on the earliest flight that can be booked to allow the children to arrive in Adelaide on the Morning of the 1st Saturday of the holiday period. This flight is to be booked and paid for by the respondent. The respondent is to notify the applicant of the flight time no later than 14 days before time is to commence.
(ii)At the conclusion of time the respondent will return the children to Adelaide airport at a time no earlier than 10am to fly back to New South Wales. The children’s flight to return to New South Wales will be booked and paid for by the applicant. The applicant will notify the respondent of the flight return details no later the 13 days prior to the children spending time.
(b)In years where Christmas Day falls on an even numbered year for two weeks being the Saturday following week 3 of the holiday period until the Saturday before week 6 of the Holiday period. This will see the children having time with the respondent week 4 and 5 of the holiday period when it is possible that the children can attend Activity DD in South Australia with the respondent.
(i)For changeover for the end of year holiday period holiday time will take place at Location CC when the children arrive in South Australia. The children will fly to Adelaide airport on the earliest flight that can be booked to allow the children to arrive in Adelaide on the Morning of the 3rd Saturday of the holiday period. This flight is to be booked and paid for by the respondent. The respondent is to notify the applicant of the flight time no later than 14 days before time is to commence.
(ii)At the conclusion of time the respondent will return the children to Adelaide airport at a time no earlier than 10am to fly back to New South Wales. The children’s flight to return to New South Wales will be booked and paid for by the applicant. The applicant will notify the respondent of the flight return details no later the 13 days prior to the children spending time.
5.Notwithstanding any orders herein to the contrary, should the children relocate to live in South Australia, the time the children spend with the respondent will be in accordance with paragraphs, 3, 4, 5 and 6 of the orders of 17 September, 2019.
6.Changeover will occur at the BB or Adelaide airport. The party who has the children in their care will deliver the children to the closest airport, BB or Adelaide, to travel for changeovers to the other party’s care. The other party will collect the children from the airport situated where the children will be spending time.
7.The respondent is responsible for children’s travel cost when travelling to Adelaide to spend time with him, and the applicant is responsible for the children’s travel cost when returning to her from Adelaide.
8.During the April and September holiday periods, the time the children spend with the respondent will take place in the BB Region, and during the July and the December to January holiday times, the time the children spend with the respondent will take place in Adelaide.9.The respondent communicate with the children by way of telephone or other electronic means, including but not limited to Facetime or Skype at times to be agreed between the parties in writing but in the event of default, as follows:
(a)Between 9.30am and 11.30 am (AEST) on each Sunday;
(b)Between 5.30pm and 6.30pm (AEST) on each Thursday; and
(c)Such other and further times as agreed between the parties.
10.For the purposes of paragraph 9 herein, the applicant provide the children privacy to speak with the respondent freely in her absence and such calls are not to be put on loudspeaker.
11.The application ensure that the children have access to Facetime and/or other video communication to enable them to communicate with the applicant at such times as the applicant may request or initiate contact which shall be unrestricted.
12.The applicant establish independent iPod accounts with an Apple id for each of the children using their current legal names and provide the children daily access to their iPods so as to enable the children to communicate with the respondent via text message.
13.The parties will communicate in relation to all matters concerning the children by text message, save for in an emergency, wherein they may communicate via telephone call.
14.Within 21 days, the applicant provide to the respondent all of the NDIS health plans pertaining to the children in a complete and unredacted form and continue doing so to keep the respondent updated in this respect.
15.The applicant forthwith name the respondent as the parent of the children to enable him to access and obtain details pertaining to the children’s NDIS plans directly from NDIS.
16. Otherwise, all outstanding applications are dismissed.
IT IS NOTED:1.The Court’s express intention as regards paragraphs 2
and 3(b)is that the children will spend Christmas, 2021 with the respondent.2.Pursuant to s.65DA(2) of the Family Law Act 1975 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 “Parenting Orders – obligations, consequences and who can help” and these particulars are included in these orders.
3.These orders have been amended pursuant to Rules 10.13(1)(g)&(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to show paragraphs 3-4 as amended in lieu of both paragraphs 3-4 as previously published and paragraphs 8-10.
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 pseudonyms Nielsen & Springer has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This case involves the parenting arrangements for three children - B, who is now 13 years of age; C, who is now aged 11; and D, now aged nine. Following a five day trial before the Family Court of Australia (as this court was then known) in Adelaide, on 17 September, 2019 Berman J ordered that the children of these parties live with their mother and spend five nights per fortnight and one half of their school holidays with their father. There were other orders made dealing with various matters. Part of the mother’s case before Berman J was that she be permitted to relocate the residence of the children to Town L from Adelaide. The father resisted that move.
As matters turned out, the orders the Court made meant that, practically speaking, the mother and children needed to remain living in Adelaide or its environs such that the orders made by the Court could be carried out. However, despite the Court’s orders, in March, 2020 the mother relocated the children’s residence to Town L without the father’s consent.
The father commenced contravention proceedings, in April, 2020. On that application the mother was determined to have contravened the orders without reasonable excuse on 10 occasions.
There were reasons for judgment delivery by Berman J, both for the purposes of the original orders he made, in September, 2019 and on the contravention application that he heard in July, 2020. In each of those reasons for judgment, his Honour sets out the uncontroversial background and I gratefully adopt that background as set out by his Honour in each of those written decisions. It is unnecessary here to repeat that background. These proceedings have trundled along consistent with the parents’ conflict. Berman J described their co-parenting relationship as fractured and the evidence before me demonstrates that is an apt description. These parents are in continual conflict and their children have suffered because of it.
There was a hearing before another judge of this court in Adelaide, towards the end of 2020, in which that judge determined that there had been a material or significant change in circumstances sufficient to warrant the revisiting of the welfare of these children and that as a result, consideration ought be given to whether the orders made by Berman J needed to be changed. It is relevant to record that just because there has been a finding that there has been a material or significant change in circumstances sufficient to warrant the revisiting of the welfare of the children, it does not follow that the orders of Berman J must necessarily be changed. However, there has been a significant change in the father’s approach to this case following the release of the family report prepared by Ms CC. Before that report was prepared, he was seeking orders that would see the return of the children to Adelaide. He now no longer seeks that relief. He is resigned to the fact, I think, that the children will remain living on the north coast of New South Wales.
Thus, the outcomes that were in dispute between these parties significantly narrowed before the hearing before me. Such that the main focus of the party’s attention was the amount of time that the children should spend with their father now that they were living on the north coast of New South Wales and he remained living in Adelaide. There are some other issues about which the parties are apart which I will deal in due course. But the significant issue was that which I have just described: the amount of time the children were to spend with the father.
Analysed in terms of s. 60CC of the Family Law Act 1975 (Cth), the issues to be determined varied according to the party making submissions. The independent children’s lawyer counsel has couched her submissions in terms of the mother’s capacity or desire to support a relationship between these children and their father. The father’s counsel couched his submissions in much the same way. The mother couched her submissions in terms of the need to protect these children from either physical or psychological harm by reason of being exposed to family violence by the father. She also emphasised the children’s wishes and how orders that might be made and which were inconsistent with those wishes, might have a detrimental impact upon the children, their relationships with their father and their overall wellbeing.
There was no dispute between the parties – at least, on the face of it – that these children will benefit from an ongoing and meaningful relationship with each of their parents and the father in particular.
As is often the case in families where there is high conflict between separated parents like this, these parents are intelligent and articulate people. They are both highly qualified and have much to offer their children. But despite their apparent intelligence, their conflict rages unabated. It is a detriment to their children for which they alone are responsible.
I am not satisfied that there is any need to protect these children from a risk of physical or psychological harm as the mother contends. Some of her allegations of family violence were considered and determined by Berman J in the contravention application dealt with by his Honour. Insofar as there is now an attempt to re-agitate those issues before me, the mother is bound by Berman J’s findings of fact. He described her allegations of family violence as confected. I agree with that description. Whilst it is the case that there may well have been communications between these children and their mother that the mother took as indicating that the children were at a risk of harm, those communications are not of such import as to cause me to reach a conclusion that these children are, in fact, at a risk of harm from physical violence in their father’s care.
Indeed, I found the mother’s evidence slightly extraordinary. She suggested that following one of the incidents where one of the children telephoned her and left a voice message she contacted the police. The police seemed uninterested. She did not follow up with the police attending upon the premises. Rather, she accepted their advice that because they would not be able to get to the children’s residence for some time, there might not be much point in them going there at all. A child is either at risk or they are not and that evidence tends to underscore the assertion, and my conclusion, that these allegations are not reflective of seriously held concerns by the mother.
There is a need to protect these children from a risk of harm though. The harm arises in two ways: the first is the harm that is arising and to which they are exposed simply by dint of the conflict that rages between their parents. That is an unfortunate thing with which these children, who have other special needs, need to cope. It is something about which these parents can do something, but choose not to.
To the extent that the mother suggests that she has attempted at all times to be conciliatory, I reject her evidence about that. Her actions speak louder than her words. Removing the children from Adelaide in the way that she did without any justification, as was found by Berman J, is just appalling. It is an extraordinary imposition on these children and their relationship with their father and there can be no greater example of the mother placing her own needs well ahead of those of her own children. Just outrageous. The conflict between these parents, as I say, rages.
There is also a need to protect these children from family violence at the hands of the mother. As I discussed with the mother, s 4AB of the Family Law Act sets out a definition of family violence. The second subsection of that definition sets out some examples of what might amount to family violence. One of the examples talks about preventing a person – in this case, the children – from making or keeping a relationship or a connection with members of their family. That is what the mother has done here. She has only permitted a connection or a relationship between these children and a member of their family – their father – in a way in which is controlled entirely by her and her dictates. That is well within the description of family violence.
Neither party here suggests that the presumption of equal shared parental responsibility applies and that has not been the subject of any submissions before me. That is not surprising because neither party seeks that the orders made by Berman J about parental responsibility be upset. But as the authorities show, it is incumbent on the Court to consider the presumption and s 61DA each time it makes a parenting order. I am making a parenting order. I need to consider it. It does not apply because of the finding of family violence I have just made. So I need consider it no further.
That the mother should continue to have sole parental responsibility is agreed between the parties and the independent children’s lawyer. In light of that agreement, but more importantly, in light of the fact that children will continue to reside with her on more or less a full-time basis, it would be inappropriate to make any other order. It unnecessary to disturb Berman J’s order about that.
The proposal of each of the parties, otherwise, is set out, in the father’s case in his third further amended application and the mother’s in her amended response filed shortly before the trial. The independent children’s lawyer’s orders appear in various places, but most recently, in a document that was forwarded on the morning of submissions. The orders sought in that document were departed from in the course of submissions when I asked whether it was necessary to discharge all of Berman J’s orders or whether it was simply necessary to make an order which dealt with the questions in issue and otherwise, left Berman J’s orders intact. The independent children’s lawyer opted for the latter course.
The orders sought by the father in his third further amended application seeks that, save in certain respects, the orders of Berman J remain intact. In the orders that she sought in her response, the mother sought that the orders be discharged, although in her oral submissions to me, she then set out the orders with which she agreed as set out in the father’s third amended application and the orders that she opposed. Having regard to what she told me about those matters, it seemed that she seeks that the orders made by Berman J would otherwise remain in place, except where they conflicted with the orders otherwise sought by her. But it was not entirely clear and in any event, it does not much matter.
The difference between the party’s positions in terms of the holiday time in this: The father says the children should spend all of their intra-year holidays with him and some of the Christmas holidays. The mother says it should be much less than that and the independent children’s lawyer is somewhere in the middle. The independent children’s lawyer fashions her orders having regard to – although, they do not align entirely with – the recommendations of Ms CC, the family consultant who prepared the s 62G report in this case. The mother, who suggested her orders aligned with the recommendations of the report writer, has, of course, selected the low watermark of the range for those orders suggested by the family consultant in each case so as to minimise the time between these children and their father.
The independent children’s lawyer invited me to find that the mother has done everything she can and will continue to do everything she can to minimise the time between the children and their father. I make that finding. I think the evidence clearly supports such a finding. The mother’s behaviour has been appalling. It is likely to continue such is her disdain for the father. But more than that, the way in which these parties – both the mother and the father – have made their submissions, having regard to their affidavit evidence and to the orders that each of them seek and the basis for seeking those orders, it is clear that neither has given any consideration to these children’s best interests. They say they have. Indeed, both – or at least the mother said that on several occasions, but it is hollow.
Both parties talked about the “father’s time”. The mother talked about the “father’s time” and what he would get and what he is entitled to. She talked about “visitation”. The use of those terms demonstrate a complete misunderstanding on the mother’s part – and the father’s, for that matter, because he used similar terms – about why we are here. We are not here about the “father’s time”. We are not here about the “mother’s time”. We are not here about “visitation”. Those concepts are foreign to the Family Law Act. They appear nowhere and they appear nowhere in the orders made by Berman J.
The Court’s authority is to make parenting orders and when it makes a parenting order, it must regard the children’s best interests as the paramount consideration. The parent’s interests do not rate a mention, generally; although, there are some statements in some authorities to the effect that parent’s interests can be and perhaps in certain cases should be, considered. But where there is a contest between the interests of children and the interests of parents, as Hayne J puts it in U v U (2002) 211 CLR 238, parents come last. But it is clear that these parents do not understand that. It is clear because of the way in which they have put their cases, the focus upon which has been on the “father’s time” and “visitation”. Children do not visit with parents. They live with them or spend time with them. They are entitled to a relationship with their parents – both of them – on their own terms, not the terms dictated to them by their parents. They are entitled to spend as much time as is consistent with their best interests with their parents. They do not visit with them. What an awful term.
If one focuses on this case from the point of view of the children, it becomes clear that the amount of time they should spend with their father given they will not live with him, should be maximised but it should be maximised consistent with their interests. I have paid very little regard to the self-serving evidence given by each of the parents, both in writing and in cross-examination, about what they consider to be in the best interests of their children because if they had any idea about that, their conflict would not rage as it presently does, they would not be in and out of court as often as they have been and their children who have such special needs, would have their interests accommodated in a quite different way to that in which they are presently accommodated. So I have paid little attention, as I say, to their self-serving statements about those things.
I have paid attention to Ms CC’s report. She is a family consultant appointed for the purposes of preparing a report pursuant to s 62G of the Act. She has recorded what the children have told her about what they wish to happen: see paragraphs 133 and following for B, paragraph 150 and following for C and paragraph 113 and following for D. I take into account what the children say, but I also take into account the nature of the environment in which they live. They live in an environment where they know that their parents are in high conflict. They live in an environment where they know that their mother dislikes and does not trust their father. They live in an environment where their mother has entire control over their lives. They live in an environment where their exposure to their other parent is minimised by their mother.
It must be the case and I find that the expression of their views is influenced by those things. I take that into account and that ameliorates against giving their wishes determinative weight. Not that children’s wishes are to be given dispositive weight in most cases: they are not. The views of children and the factors that need to be taken into account when assessing the weight to be given to those views are just one of the many matters that needs to be considered having regard to s 60CC. But in the context of this case and the way in which it was argued, having regard to the evidence provided by the parties, the views of the children are a matter of significance to the parties and in particular the mother and the family report writer. And so whilst I do not discount the children’s views, I do not consider their views dispositive either. I have taken them into account.
The proposal that the father seeks to have put in place in terms of the holiday time would see these children spending most of their holidays with him. That would be inappropriate. It would be inappropriate from their point of view because, first, they are entitled to spend some of their holidays with their other parent – in this case, their mother; second, they are also entitled to live their own lives. That means that as they get older, they will seek to become independent from their parents. Part and parcel of that is that during school holidays, they will wish to interact with their friends, their social networks and their peers. They will not be able do that effectively if each holiday period, they have to go to Adelaide. It is appropriate for the children to have the opportunity to advance the legitimate interest they have in developing their own social networks outside of school.
The mother’s orders are too restrictive. They will not permit these children, in my view, to continue what might be described as a meaningful relationship with their father. It is of considerable interest to note that the proposals now made by the mother are different to those that she assured would be put in place in early 2020, following the father’s contravention application. She always suggested that the time set out in the orders by Berman J would be adhered to. How that could possibly be so given that she was to live in northern New South Wales is beyond me. Perhaps she is talking simply about quantity, but, of course, quantity alone is not enough. It is the frequency of the time, the regularity of it and the way in which it occurs on a fortnightly basis that permits children to become comfortable with an arrangement and which permits them to develop a relationship in a natural way. How the orders could possibly have been adhered to by the mother is not at all clear.
It is also worth remarking that having found the mother guilty of the contraventions and having found that she had no reasonable excuse for them, Berman J ordered the mother to enter into a bond. He made no orders about the orders of 17 September and one of the conditions of the bond was that she would observe the terms of the orders that were currently in place and that might be made in the future. The orders made, on 17 September, 2019 have never been discharged, have never been suspended and have never been varied and so on its face, the mother is in breach of the bond. It is not to the point, in my view, to say that the father has given an undertaking that he will not prosecute further contravention applications in respect of further breaches, because they are two different things. That is like comparing apples with oranges. The mother is, on the one hand, bound by her undertaking to comply with the orders; on the other hand, the father is bound not to complain of further contraventions. But that he might not complain of further contraventions to the Court does not mean that the mother is relived from complying with the orders, especially given that it was a condition of a bond.
The orders proposed by the independent children’s lawyer insofar as the time to be spent by the children with their father are entirely appropriate in my view. They represent a balance between the entitlements of these children to spend time with their father and the children’s entitlements to, as I have remarked earlier, live their own lives. It will see them spending time with him in Adelaide and on the northern New South Wales coast, or the BB Region during the course of the year. It will also permit the children to spend holiday time with their mother. The Christmas holiday time proposed by the independent children’s lawyer is entirely appropriate. I do not accept that the evidence demonstrates that these children would not be able to cope with that time.
The family consultant permitted of the possibility, for most of her evidence was couched in terms of possibility not probability that the children will indeed cope with that time. Free of the shackles of their mother’s concern, one might think that they would more than cope with that time. It was suggested that the father might not be available to spend the time with the children because of his work. The children’s schooling arrangements and their holidays do not neatly line up with the holidays that the father will be able to have through his work as a university lecturer, but I do not think that matters for two reasons. First, the amount of time that the father will not be able to spend with them will be limited. I accept his evidence that he might have to duck off to the university to lecture for an hour or two, but the time he might be away will be limited.
Secondly and perhaps more importantly, these children are entitled to experience both of their parents and both of their parent’s lives. Their father’s life is that of an academic. They are entitled to see him make arrangements for them when he has to work. They do not have that opportunity in their mother’s household because she does not work. It is of enormous benefit to them to have experience in their father’s household where he has employment and he has to make arrangements for them while he attends to his employment from time to time. Rather than a detriment to these children, it will be a benefit.
I am not satisfied that neither of these parties can afford the cost of the travel for these children to spend time with their parents. I found the evidence of both of the parties about their financial circumstances entirely disingenuous. To suggest that the father, given his income as disclosed in his financial statement, cannot afford air travel for the purposes of these children spending time with him, or him with them was, in my view, quite mealy-mouthed. So too, the evidence of the mother. On the one hand, she suggested she had no financial capacity to provide for these children to spend time with the father, but yet on the other hand, insisted on the continuation of orders that would permit her to travel overseas with them. The two are inconsistent. Her position suggests that there is a source of funds upon which she would be able to call for the purposes of overseas travel, but which she has chosen not to reveal. Again, the orders about changeover and the cost of travel proposed by the independent children’s lawyer are entirely appropriate and I will make them.
I have not lost sight of the fact that the holiday orders that the Independent Children’s Lawyer asks me to make will see these children spending Christmas this year with their father. That is entirely appropriate. They did not spend time with him last year. They should spend that time with him this year.
The father seeks an order to this effect: that in the event that the children relocate to live in South Australia, that the father’s time with the children should be in accordance with paragraphs 3, 4, 5 and 6 of the orders of 17 September, 2019. The mother seeks that those orders be discharged. I do not discharge them. There will be an order as the father seeks, because if these children do relocate to South Australia, there is nothing to suggest that the orders made by Berman J will not continue to meet the best interests of these children. Those orders were made after a hotly contested trial that went for a number of days and his Honour delivered significant reasons about why those orders were concluded to be in the best interests of these children. There is no reason to disturb them in the event that the children and the father and the mother live in a proximity to each other that would allow those orders to work.
The father seeks an order that paragraphs 1 to 16 of the orders of 17 September, 2019 otherwise remain operative. Presumably, that is if the children and the mother relocate to South Australia. I will return to that order because the mother seeks that paragraphs 10 and 16 of the orders of Berman J, along with 3, 4, 5 and 6, be discharged. I have dealt with 3, 4, 5 and 6. I will return to deal with 10 and 16 and some other orders soon.
The father seeks an order that within 21 days, the mother provide to the father all of the NDIS health plans pertaining to the children in a complete and unredacted form and to continue doing the same to keep the father updated in this respect and I do make that order. It is entirely appropriate. There is nothing to suggest that that information should not be given to the father. Whilst it is the case that the mother has sole parental responsibility for these children, that does not mean that the father ceases to be a parent of them. It does not mean that they cease to know him as their father and it does not mean that he ceases to have an interest in their welfare. I have read carefully the reasons of Berman J following the first trial and I understand that there were findings made about the level of the father’s interest in and apparent attendance at the children’s treatment plans in respect of their special needs. But notwithstanding those things, there was an order made by Berman J that required the mother to provide to the father information about a whole range of matters concerning the children’s health. This is just an extension of that and it is an extension that is necessary to deal with what, in my view, is simple disingenuity on the part of the mother.
Paragraph 12 sought by the father follows: The mother should forthwith name the father as a parent of the children to enable him to access and obtain details pertaining to the children’s NDIS plans directly from NDIS. The order for sole parental responsibility - which no doubt the mother has or will provide to those NDIS authorities – will make it clear that the father has no decision-making capacity.
The mother agrees with paragraph 13.1 of the orders sought by the father. That is about telephone communication. He seeks telephone communication on two days per week: Sunday and Thursday. Two days per week is entirely appropriate given that these children will spend very little time with their father except on holidays. I make the same orders as those set out in paragraphs 13.1, 13.2 and 13.3 of the orders sought by the father. The mother tells me in her submissions that orders 14, 15 and 16 have already been implemented. There will be orders to that effect.
There is an issue between these parties about passports. The issue about passports is dealt with in Berman J’s orders. Nothing has been brought to my attention which would suggest that the best interests of these children demand an interference with those orders. They provide for what is to happen with an Australian passport and a Country Z passport. The children will also have Country F passports. The mother says it is necessary for her to hold the Australian passports, but that is not a question of the children’s best interests. That is a question of what it is that the mother wishes for her own convenience. There are orders in place. I do not intend to disturb those orders, nor do I intend to make any other orders with respect to the question of passports. Those issues are dealt with by Berman J’s orders to the extent that it was necessary for them to be dealt with.
There are orders sought by the mother to the effect that when the children are spending time with the father, the mother be at liberty to organise the children’s NDIS support worker to attend the father’s accommodation and/or home on two separate occasions for therapeutic consistency and that the mother pay the support worker directly. I refuse to make that order. In my view, on the evidence, it is unnecessary. Given the limited amount of time these children will be spending with their father, it would not be to their benefit on the evidence before me for that time to be disrupted in the way in which the mother contends.
The mother seeks an order that in the event of a medical emergency whilst the children are in the father’s care, the father advise the mother immediately and facilitate contact with the children via mobile phone. I do not intend to make that order. I expect parents to behave as parents.
The mother seeks orders that deal specifically with travel restrictions that might be imposed by reason of the COVID-19 pandemic. Again, I do not intend to make those orders either. As the Chief Justice of this Court has made clear in practice directions that have been issued, orders of the Court are expected to be complied with irrespective of COVID-19 restrictions and the pandemic. Indeed, it is generally speaking, an exemption under health care directives or health directives given by relevant State medical authorities that court orders in relation to children spending time with parents are exempt from the restrictions that are so imposed. In those circumstances, order 13 as proposed by the mother is unnecessary.
There are already orders in place for the parties to keep their residential address, email address, mobile phone numbers current with each other. There is no need to make a further order. I do not intend to make any other orders that are sought by either party.
The orders that were made by Berman J will remain as the father seeks and, in part at least, as the mother seeks.
Order 10 will remain because the father seeks that it remain. It is within order 1 to 16. He seeks that it remain. It is inconsistent with the order that he seeks about the mother being restrained from removing the children from the Commonwealth, but I am not satisfied that it is appropriate to issue that restraint, because orders 10 and 11 cover the question of overseas travel and in particular paragraph 10(b) provides something of a check and balance to that overseas travel.
There will be orders accordingly.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Jarrett delivered on 24 November, 2021 Associate:
Dated: 9 December, 2021
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