Phillips & Nicholson

[2024] FedCFamC1F 882

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Phillips & Nicholson [2024] FedCFamC1F 882

File number(s):	SYC 5997 of 2023
Judgment of:	ALTOBELLI J
Date of judgment:	13 December 2024
Catchwords:	FAMILY LAW – PARENTING –  Where the Court is asked to determine the time the children spend with the parents over the holidays – Where the parents application is heard on an urgent interim basis pending a listed final hearing – Where the Court considers the children’s safety should they travel internationally – Where the Court considered whether one parent’s partner posed any risk to the children – Where the Court allows extended holiday time with the parents – Where the Court permits the children to travel internationally.
Division:	Division 1 First Instance
Number of paragraphs:	16
Date of hearing:	13 December 2024
Place:	Sydney
Counsel for the Applicant:	Mr Harper
Solicitor for the Applicant:	Barkus Doolan Winning
Counsel for the Respondents:	Mr Ford
Solicitor for the Respondents:	Long Saad Woodbridge Lawyers

ORDERS

SYC 5997 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR NICHOLSON

Applicant

AND:

MR PHILLIPS

First Respondent

MS LECLERC

Second Respondent

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	13 DECEMBER 2024

THE COURT ORDERS THAT:

1.The Applicant’s Application in a Proceeding filed on 5 November 2024 is hereby dismissed.

2.Orders are made in accordance with the document marked “A” dated this day, attached hereto and as amended by the Court.

3.Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth) 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 Annexure A and these particulars are included in these orders.

THE COURT ORDERS BY CONSENT THAT:

4.Pursuant to Rule 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the Applicant hereby has leave, by no later than 10 January 2025 to ask clarifying questions of the Single Joint Expert, Ms B pursuant to r 7.26 of the Rules.

THE COURT NOTES THAT:

A.The Applicant has already purchased airline tickets for the children to travel with him to Country C. Counsel for the Applicant confirmed that the airline tickets purchased can be amended without substantial difficulty.

B.In response to a direct question from the Court, Counsel for the Applicant indicated that Mr D is not travelling with the children to Country C.

C.Any other orders relating to the spend time with arrangements for the children, for the purposes of school holidays time, between the periods of December 2024 to July 2025 are suspended.

D.Any further issues related to this matter are to be directed to the chambers of the Honourable Christie J.

“A”
FAMILY LAW ACT 1975
MINUTE OF ORDERS

IN THE FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

AT SYDNEY   File No.   SYC5997/2023

BETWEENMR PHILLIPS

Applicant

ANDMR NICHOLSON

First Respondent

ANDMS LECLERC

Second Respondent

ORDERS SOUGHT BY THE FIRST RESPONDENT, MR NICHOLSON (FIRST RESPONDENT IN SUBSTANTIVE PROCEEDINGS AND APPLICANT IN INTERIM PROCEEDINGS) - INTERIM HEARING

1.That the each of the parties spend time with/live with the children on the following occasions during the December 2024/January 2025 school holiday period as follows:

1.1With the Applicant from 3pm on 6 December 2024 to 3pm on 13 December 2024;

1.2With the First Respondent from 3pm on 13 December 2024 to 9am on 18 December 2024;

1.3With the Applicant from 9am on 18 December 2024 to 3pm on 25 December 2024;

1.4With the First Respondent from 3pm on 25 December 2024 to 9am on 1 January 2025;

1.5With the Applicant from 9am on 1 January 2025 to 3pm on 8 January 2025;

1.6With the First Respondent from 3pm on 8 January 2025 to 9am on 15 January 2025;

1.7With the Applicant from 9am on 15 January 2025 to 9am on 25 27 January 2025 (and noting that the First Respondent proposes to travel to Malaysia on a flight leaving at 12.10pm); and

1.8With the First Respondent from 9am on 25 27 January 2025 to 11am on 3 5 February 2025 (and noting that the First Respondent proposes to return from Country C on a flight landing at 10.20am).

2.That the each of the parties spend time with/live with the children on the following occasions during the April 2025 school holiday period:

2.1With the First Respondent from 3pm on 11 April 2025 to 11am on 20 April 2025; and

2.2With the Applicant from 11am on 20 April 2025 to 3pm on 29 April 2025.

3.That the each of the parties spend time with/live with the children on the following occasions during the June/July 2025 school holiday period:

3.1With the First Respondent from 3pm on 27 June 2025 to 3pm on 2 July 2025;

3.2With the Applicant from 3pm on 2 July 2025 to 3pm on 7 July 2025;

3.3With the First Respondent from 3pm on 7 July 2025 to 3pm on 14 July 2025; and

3.4With the Applicant from 3pm on 14 July 2025 to 9am on 22 July 2025.

4.That pursuant to section s65Y of the Family Law Act 1975 (Cth) the First Respondent be permitted to travel with the children to Country C during the period 25 January 2025 to 3 February 2025.

5.That on or before 18 January 2025, the First Respondent will provide to the Applicant a flight itinerary for the travel set out in Order 6 above.

6.That the First Respondent is authorised to provide a copy of these Orders to the Australian Federal Police to facilitate his international travel with the children in accordance with these Orders.

7.That the Applicant will retain Y's passport and the First Respondent will retain X's passport/s and each of the parties will provide it to the other for the purposes of that party travelling with the children pursuant to these Orders at least 7 days prior to the children's travel or if required for the purposes of that party obtaining a visa for the children, within 7 days of a request by either of the parties and the Applicant will return X's passport/s to the First Respondent within 48 hours of the children's return to Australia and the First Respondent will provide Y's passport to the First Respondent within 48 hours of the children's return to Australia.

8.That in the event that there is any inconsistency between these Orders and Order 3 of Orders made on 3 October 2024 then these Orders will apply.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Phillips & Nicholson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

ALTOBELLI J:

1. The matter comes before me on very discrete issues, but important issues for two children;  X, born in 2020, who is four (“X”), and Y, born in 2020, who is four (“Y”) (collectively “the children”). The children are, it would seem from the totality of the material before me, the much-loved children of their fathers. Mr Nicholson is the Applicant before me today (“Mr Nicholson”), and Mr Phillips is the Respondent in the said matter (“Mr Phillips”) (collectively “the parents”). By way of brief biographical details, Mr Phillips is 52 years old and Mr Nicholson is 51 years old. As I mentioned, there are two children; both four. The parents’ relationship commenced about 2010 or 2011. Cohabitation was either in 2011 or 2012. Nothing turns on these matters.

2. The parents’ relationship ended in August 2023, when Mr Nicholson left the former family home in Suburb E with Y. The children were born as a result of surrogate relationships; X was born in Country F via surrogate, and Mr Phillips is the biological father of X.  Mr Phillips and Mr Nicholson are listed as X's parents on his birth certificate. Y was born in Country G via surrogate. Mr Nicholson is the biological father of Y, and Mr Nicholson and the biological mother are listed as Y's parents on the birth certificate. There had been difficulty in effecting service on the Second Respondent, who is the biological mother. Nothing turns on that for present purposes.

3. The matter is listed for final hearing in relation to parenting and property issues before her Honour Christie J in April 2025. In relation to the children, the current interim orders relating to them were made on 12 September 2023, and were subsequently varied on 12 February 2024. In effect, these orders provide for the children to live with Mr Phillips and spend time with Mr Nicholson for four nights each fortnight. There is no provision for block holiday time, and indeed, that is the substantive issue before the court this morning. The Court has the benefit of a Family Report prepared by Ms H (“the Single Joint Expert”) dated 7 June 2024 (“the Single Joint Expert Report).

4. The Single Joint Expert Report is very helpful to the Court, not just in terms of background, but in reassuring the Court that these two boys are doing fine. In fact, they are probably doing more than fine. They are referred to as bright, well-adjusted and developmentally normal, if not indeed advanced for their age. The parents agreed that the children should stay as a unit and travel between their parents' homes together. At paragraph 135 of the Single Joint Expert Report, the Single Joint Expert opines that once the children are at primary school age, it would be developmentally appropriate to spend up to equal time. At paragraph 136, the Single Joint Expert Report talks about the love and affection between the children and Mr Nicholson.

5. At paragraph 145, the Single Joint Expert opines about moving towards independent parenting and implementing boundaries between the parents as themes that need to be addressed in this matter. She says it is important that the parents approach co-parenting with the attitude of collaboration, respect for each other's role in the children's lives, respect of each other's boundaries and that they are mindful to not imping on each other's space. It is apparent that Mr Phillips does interfere with Mr Nicholson's parenting, which is consistent with Mr Nicholson's narrative of Mr Phillips gatekeeping his parenting of the children, and Mr Phillips's narrative around Mr Nicholson being challenged to take on advice from him about parenting the children.

6. There are shades of that, the Court observes, in the present discrete issue that the Court needs to determine. The Single Joint Expert correctly observes that there is still substantial high conflict between the parents. The amount of litigation in this case, and the amount that has been expended in the litigation, is evidenced from Cost Notices filed 12 December 2024 and 13 December 2024 by Mr Nicholson and Mr Phillips respectively.

7. A number of safety concerns were raised in the context of the report in relation to Mr Nicholson's drug use, but all of those issues appear to have faded away, thankfully, from the children’s perspectives. The Single Joint Expert Report concludes by suggesting an incremental increase to equal time, at paragraph 153.

8. With that background, the application before me is contained in Mr Nicholson's Application in Proceeding filed 7 November 2024, noting that the only matter that is listed for determination by myself relates to Orders 2.3, 2.4, 2.5, 6, 7, 8, and 9. In the Amended Response to an Application in a Proceeding filed by Mr Phillips on 29 November 2024, he seeks that the application of Mr Nicholson be dismissed, alongside a number of other orders that, for all practical purposes, could not be pressed, as they were not issues listed before me, and arguably, were not issues in respect of which Mr Nicholson is prepared to make submissions about.

9. The material that the parents rely on is referred to in their case outline documents. In support of his case, Mr Nicholson relied on the following material:

   (a)Outline of Case Document filed 2 December 2024;

   (b)Application in a Proceeding filed 7 November 2024;

   (c)His affidavit filed 21 November 2024;

   (d)The Single Joint Expert Report; and

   (e)Various documents tendered during the proceedings and marked as Exhibits A1–A3.

10. In support of his case, Mr Phillips relied on the following material:

    (a)Case Summary Document filed 2 December 2023;

    (b)Amended Response to an Application in a Proceeding filed 29 November 2024;

    (c)His affidavit filed 29 November 2024;

    (d)Costs Notice filed 29 November 2024; and

    (e)Various documents tendered during the proceedings and marked as Exhibits R1 & R2.

11. For present purposes, I note that Mr Nicholson has already purchased airline tickets for the children to travel with him to Country C, and that those airline tickets are such that, based on observation of the documents and submissions made by Mr Harper; his counsel, can be amended without substantial difficulty. 

12. There is some email correspondence between the parents, which ultimately does not inform the decision that I need to make. Exhibit R1, filed on behalf of Mr Phillips, is extracts from a prior affidavit filed by Mr Nicholson on 5 November 2024. I note the contents of the same, but ultimately,  this information does not inform the decision I need to make.

13. I think, significantly, Exhibit R2 consists of documents being Department of Communities and Justice documents that relate to an asserted safety issue for the children arising out of disclosures made about the conduct of Mr D, who I apprehend is Mr Nicholson's partner. It is hard, with respect, to make sense of these documents, and indeed, of the safety issue that they assertedly rise. For the purposes of the trip to Country C, Mr Nicholson has confirmed that he, Mr D, will not be travelling with the children and himself to Country C. The assertions of safety issues are plainly inconsistent with the actions of Mr Phillips, and for all practical purposes, do not inform the present decision, because this Court is satisfied that on the evidence before it there are no safety issues, principally based upon the course of conduct that the parents had themselves adopted. 

14. Turning then to the substantive issues in dispute, Mr Nicholson proposes, and Mr Phillips opposes orders that would clarify the time that each child spends with, or lives with the other parent during school holiday periods. It would bring two things into the lives of X and Y. It would bring consistency, because they are already spending time with Mr Nicholson, on what would seem to be a fairly consistent basis. The orders extend this for the purposes of school holidays. Submissions were made that I should not make these orders beyond the current or forthcoming school holidays over December, January, on the basis that a final hearing is pending. I disagree. 

15. Just because the matter is heard in April, it does not mean that a judgment will be forthcoming on that date. I see no disadvantage to the children; indeed, only advantage in having the benefit of orders that make consistent the arrangements for them to spend time with their father, Mr Nicholson. The second thing that the making of the orders does, is to provide certainty in the context of what appears otherwise to be a high conflict dispute between the parents. In making these orders, I am conscious of the fact that I am implementing, even on an interim basis, the recommendations made by the Single Joint Expert about progressing towards equal time, but obviously only by way of taking steps during school holidays. 

16. On the basis of all the material before me, I simply cannot see any reason why these orders should not be made. Again, I observe that it seems consistent with previous arrangements, albeit ad hoc arrangements. I am satisfied that those orders are in the best interests of the children.

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

Associate:

Dated:       19 December 2024