Nielsen & Springer (No. 3)

[2021] FamCA 649

FAMILY COURT OF AUSTRALIA

Nielsen & Springer (No. 3) [2021] FamCA 649

File number(s):	ADC 1483 OF 2017
Judgment of:	BAUMANN J
Date of judgment:	13 August 2021
Catchwords:	FAMILY LAW – PARENTING – Where the mother unilaterally relocated interstate with the children – Where the matter has been given an early trial date – Orders made for the children to spend block time with the father during school holidays subject to COVID-19 restrictions, prior to the Final Hearing.
Cases cited:	Rice & Asplund (1979) FLC 90-725
Number of paragraphs:	16
Date of hearing:	13 August 2021
Solicitor for the Applicant:	Georgina Parker Lawyers
Counsel for the Respondent:	Mr Anderson
Solicitor for the Respondent:	CG Family Law
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW Lismore Family Law

ORDERS

ADC 1483 of 2017

BETWEEN:

MS SPRINGER

Applicant

AND:

MR NIELSEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	13 AUGUST 2021

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the children, B born … 2008, C born … 2010 and D … 2012 (“the children”) spend time and communicate with the father at a location identified by the father in BB City for the period commencing 16 October 2021 to 23 October 2021 subject to the following conditions:

a.The father shall advise the mother in writing by no later than 2 October 2021, the location the children will be spending time with the father in BB City;

b.That changeover shall occur unless otherwise agreed in writing, at 12.00pm on 16 October 2021 and 12.00pm on 23 October 2021 at a McDonalds restaurant in close proximity to the location where the children will spend time with the father;

c.The father shall facilitate the children communicating with the mother by telephone on Wednesday 20 October 2021, with the father to initiate the children’s calls to the mother at 6.00pm, unless otherwise agreed. The father will facilitate the children telephoning the mother upon a reasonable request by the children; and

d.The parents shall, by no later than 9 October 2021, confirm by exchange of emails that they agree that COVID-19 travel restrictions in South Australia, New South Wales (including Northern New South Wales) and Queensland (including South East Queensland) do not cause any practicable impediment to the Orders of today being put into effect. In that regard, to put the arrangements in effect, should either parent or the children be required to enter into quarantine conditions, whether hotel or home quarantine, then that would amount to a practical impediment to the visit as ordered occurring.

2.That these proceedings be set down for Final Hearing for not more than three (3) days commencing at 10.00am on 22 November 2021 in the Family Court of Australia at Brisbane.

3.That the Applicant pay any hearing fee or seek a waiver of the fee no later than 4.00pm on 1 November 2021.

4.That each party file and serve on each other no later than 4.00pm on 1  November 2021:

a.one (1) consolidated Affidavit of evidence in chief; and

b.one (1) Affidavit of each witness intended to be relied upon at trial.

5.That each party file and serve on each other no later than 4.00pm on

12 November 2021, one affidavit strictly in reply.

6.That each party file and serve on each other no later than 4.00pm on

7 November 2021, a case outline setting out:

a.a precise minute of the final orders sought;

b.a relevant chronology; and

c.a list of Affidavits and Applications and/or Responses intended to be relied upon at trial.

7.That no party shall be entitled to rely upon any affidavit material not filed in accordance with these directions without leave of the Court.

8.That in the event that either party wishes to cross examine the family report writer at the Final Hearing, that party shall provide written notice to the family report writer of such intention as soon as reasonably practicable, but by no later than 4.00pm on 1 November 2021.

9.That these proceedings be adjourned for Case Management Hearing at 9.30am (Queensland time) on 9 November 2021 in the Family Court of Australia  at Brisbane by telephone, to ascertain whether the Final Hearing should proceed via Microsoft Teams and what witnesses should appear via Microsoft Teams.

10.That the parties have leave to appear by telephone on 9 November 2021 by using the Microsoft Teams telephone conferencing system as follows:

a.They shall each telephone … (including any international dialling codes if calling from outside of Australia) by 9.25am on 9 November 2021;

b.They shall each then enter the pass code …; and

c.Hold the line until the Court is ready to connect and proceed with the matter.

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 r 17.02 Family Law Rules 2004 (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 Nielsen & Springer 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

BAUMANN J:

1. As the transcript today reflects, the issue that requires determination today is rather narrow, but within a much broader context. The history of the matter is set forth in a number of Judgments already before the Court, particularly those of Berman J, who made Orders on 17 September 2019 after a trial, the effect of which was that the three children, B, aged 13, C, aged 11, and D, who will turn 9 later this year, were to live with the mother. From the terms of the Order, it was clearly his Honour’s intention that the children live with the mother in Adelaide. That is apparent from the arrangements for time the children were to spend with the father in his Honour’s Order, namely, from Thursday to Monday each alternate weekend and half of the school holidays.

2. It is apparent from the Reasons of his Honour that this was a matter with some significant conflict. It is also apparent and not in dispute that the three children all are on the autism spectrum, but have challenges individually in addition to that. B is described as having receptive and expressive language disorders and working memory deficits. C is said to have the further challenge of ADHD, sensory processing disorder and expressive language disorder and D is said to have challenges including nut allergies, atopic dermatitis and balance and coordination issues, another form of poor muscle tone.

3. I make that observation because these children may not have the same capacity robustly, to deal with changes that have occurred in their life, of which they have had no real control as do other children who do not have the day-to-day challenges of these children. The first challenge they had to deal with, and one brought about by the seemingly unilateral actions of the mother – although, from her perspective, as she would say, in the best interests of the children are necessary – was her unilateral movement despite the orders of Berman J, to Northern New South Wales. This occurred in around March 2020.

4. Interestingly and not surprisingly, the father brought contravention proceedings which were dealt with in the Family Court of Australia in Adelaide. There were further applications dealt with by Mead J relating to Rice & Asplund (1979) FLC 90-725 principles and other issues. Whatever genuine efforts were made by the Court in Adelaide to deal with the mother’s conduct in moving to Northern New South Wales in March 2020, none of it resulted in the mother returning to Adelaide. Although the father’s constant application was that she do so, by his third amended Response filed on 12 August 2021, the father seems to – no doubt with some degree of frustration and reluctance – abandon the application that the children return to live with him in South Australia. His application, in a sense, in his filed response, deals with the type of arrangements that should occur for the children to spend time with him if they were not living in South Australia or alternatively, if they were living in South Australia. I have no doubt this new position is shaped by the recent family report. A number of applications are identified in the third amended Response.

5. Aware of the long and very difficult history this matter has had, I took the view when the matter was last before me after the most recent family report by Ms CC was released in July, that this matter required some expedition towards a Final Hearing. It has been possible to rearrange the judicial calendar in Brisbane to provide the parties with a Final Hearing on the matters in dispute commencing on 22 November 2021. I propose, after delivering these brief Reasons, to deal with trial directions to ready this matter for the hearing.

6. With the early trial having been intimated to the parties, the issue that required determination today was what arrangements for the children to spend time with the father could occur before the trial in November. In that respect, the parties identified an opportunity to do so in mid‑October 2021, because that would seem to be within a school holiday break which these children would have available to them because of the different school holiday arrangements for the school they attend in Northern New South Wales.

7. Arising from that opportunity for the children’s availability, the parties were invited to identify their proposals. Marked Exhibit 1 today, and in accordance with an earlier direction to the Independent Children's Lawyer (“the ICL”), Ms Marshall, that she identify the parties’ competing proposals, they did so. In short, the mother proposes that the children should spend time with the father from 19 October 2021 to 24 October 2021, being five nights in BB City.

8. The father’s proposal is that the children should spend time with him from 16 October 2021 until 23 October 2021, being for seven nights in Adelaide. The ICL’s proposal is that the children spend time with the father from 16 October 2021 to 23 October 2021 in BB City. The ICL also identified that she would support the father being able to travel to BB City for the Father’s Day long weekend commencing Friday, 3 September 2021 if he is able to do so. As I understand the submissions of Mr Anderson for the father, that is not a possibility.

9. Having considered the submissions of the parties, and the evidence they have relied upon for today, but particularly considering, importantly, the most recent independent evidence of the children’s views and the recommendations of the report writer, Ms CC, contained in a significant family report of over 209 paragraphs, published and released by the Court on 16 July 2021. My view is that it would be, subject to what I next say about COVID restrictions, in the best interests of the children that they spend time with their father from 16 October 2021 to 23 October 2021 in BB City.

10. My reason, in viewing the competing proposals identified by the parties and submissions for coming to that conclusion on an interim basis and before the evidence can be tested, as it will be in the week of 22 November 2021, are succinctly as follows:

    (1)It is in the best interests of these children to spend time with their father. It is clear from all the evidence that they had a good relationship with their father before they were removed from Adelaide. Such was found by Berman J and such has been confirmed in the most recent family report;

    (2)The children have been unsettled by, in my view, the uncertainties around their continued occupation and schooling in Northern New South Wales and how they spend time with their father. It is at least open to accept the children's views expressed that they are aware that their father was unhappy, that they had moved to Northern New South Wales and he wished them to return to Adelaide. As much as they were aware that the mother was unhappy about returning to Adelaide, in my view, the children were aware of this conflict between their parents – a conflict between the parents which has been ongoing since these parties separated finally and physically in or about January 2017; and

    (3)The best evidence of the last visit in BB City from the father is that it went well, although B expressed a desire to return to the home of the mother, manifested by him taking his bag to the interviews with the family consultant – those interviews being arranged purposefully during the period that the father could attend in BB City. It seems that the youngest child's desire to spend time with the father was most manifest by what she said to Ms CC and what the father says. I have no doubt that the children enjoyed their time with the father on balance. However, they were aware that the mother was within proximity.

11. Because of the prevailing uncertainties about the conflict between the parents and where they may ultimately live, that effect and, in that context, I am sure it is likely to have shaped some of the older children's concerns about travelling to Adelaide and whether the father would permit them to return. That would not seem to be an unreasonable concern, considering how it seems they moved from a settled environment in Adelaide to Northern New South Wales, although the evidence suggests they have, in their schooling environment, settled well. That, at least, is a conclusion reached by Ms CC, who supports the children continuing to live with the mother in Northern New South Wales.

12. However, the context of what has occurred since March 2020 should not be ignored, as it affects the children's wishes and feelings. I accept the father bears the cost and inconvenience – including adjusting his work situation, as a full-time academic – of travelling from Adelaide to BB City. Of course, finding suitable accommodation and not being in a position to share with the children some of the delights of Adelaide of which they would certainly be aware and enjoyed when long-term residents of that beautiful city.

13. Nonetheless, on an interim basis, it seems to me that those costs of the children either travelling to Adelaide or the father travelling to BB City may not be substantially different, but I do not ignore their impact on the father who pays, without any controversy, significant child support at over $800 per week. Of course, as I have indicated, if ultimately there are costs associated with contact which are significant, that can be a matter for, an application for departure from the Child Support Administrative assessment

14. I have formed the view that the children will benefit from the time with the father with less stress and are more likely to enjoy the time with the father if it occurs in BB City. Whilst the mother says that the five days would be the more ideal timeframe, I am satisfied for the reasons expressed by the ICL, supported by the father, and, in my view, supported by the family consultant who prepared the family report, and even further identified by Berman J as appropriate, that one week is the appropriate timeframe.

15. For these Reasons, I will make an Order that the children spend time and communicate with the father at a location identified by the father in BB City for a period commencing 16 October 2021 to 23 October 2021, subject to the following conditions:

    (a)The father shall advise the mother in writing no later than 2 October 2021, where the children will be spending time with the father in BB City;

    (b)The changeovers to occur for the time the children with the father in BB City shall occur, unless otherwise agreed in writing, at 12 noon on 16 October and 12 noon on 23 October at a McDonald's restaurant in close proximity to the location where the children will spend time with the father;

    (c)The father shall facilitate the children communicating with the mother by telephone on Wednesday 20 October 2021 with the father to initiate the children's call to the mother at 6.00pm, unless otherwise agreed, but otherwise the father will facilitate the children telephoning the mother upon a reasonable request by the children. I will come back to that in a moment; and

    (d)The parties shall, by no later than 9 October 2021, confirm by exchange of emails that they agree that COVID-19 travel restrictions in South Australia, New South Wales (including Northern New South Wales) and Queensland (including South East Queensland) do not cause any practical impediment to the orders pronounced today to be put into effect. In that regard, if, to put the arrangements in effect, any party or the child would be required to enter into quarantine conditions, whether in hotel quarantine or home quarantine, then that would amount to a practical impediment to the contact visit ordered occurring.

16. Again, I would otherwise adjourn this matter for trial on 22 November 2021 and make trial directions as set out at the commencement of these Reasons.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Baumann.

Associate:

Dated:       28 September 2021