Phillips & Nicholson (No 4)
[2025] FedCFamC1F 342
•23 May 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Phillips & Nicholson (No 4) [2025] FedCFamC1F 342
File number: SYC 5997 of 2023 Judgment of: CHRISTIE J Date of judgment: 23 May 2025 Catchwords: FAMILY LAW – PARENTING – Equal time arrangements – Where children currently spend 4 nights a fortnight with the respondent – Where parties are largely in agreement that the children should move to an equal time arrangement – Where dispute remains around the time period to implement this move to equal time – Ordered that the move to an equal time arrangement take place in a graduating manner starting at 5 days a fortnight with the respondent until equal time is reached.
FAMILY LAW - PARENTING – Parental responsibility – Where applicant seeks shared parental responsibility in all areas – Where respondent seeks sole parental responsibility for medical and schooling matters – Where evidence supports that the children will be better served by the respondent exercising these responsibilities – Order made for shared parental responsibility in all matters aside from medical and schooling needs.
Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Isles & Nelissen (2022) FLC 94-092 Division: Division 1 First Instance Number of paragraphs: 99 Date of hearing: 7 – 11 April 2025 Place: Sydney Senior Counsel for the Applicant: E. Cox Counsel for the Applicant: J. Tabbernor Solicitor for the Applicant: Long Saad Woodbridge Lawyers Senior Counsel for the First Respondent: P. Cummings Counsel for the First Respondent: M. Weightman Solicitor for the First Respondent: Barkus Doolan Winning Second Respondent: No appearance ORDERS
SYC 5997 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PHIILIPS
Applicant
AND: MR NICHOLSON
First Respondent
MS LECLERC
Second Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
23 MAY 2025
THE COURT ORDERS THAT:
A.The Court notes the following definitions for the purposes of these Orders:
A.1. "Applicant" means Mr Phillips;
A.2. "Parties" means the Applicant and the First Respondent;
A.3. "First Respondent" means Mr Nicholson;
A.4. “The Act” means the Family Law Act 1975 (Cth).
B.These orders are to be read with the consent orders dated 7 May 2025.
DECISION MAKING RESPONSIBILITY
1.The parties have joint decision-making responsibility in relation to all major long-term issues relating to X born 2020 and Y born 2020 ("the children") and must make joint decisions concerning their major long-term issues as defined in the Act, excepting for decisions referable to educational and medical issues, subject to order 3.
2.The First Respondent have sole decision-making responsibility in relation to all major long-term issues concerning educational and medical issues for the children.
3.The First Respondent can enrol the children to attend NN Preschool 8 days per fortnight commencing Term 2 2025, increasing to 10 days in Term 3 2025 provided that the two weekdays on which the children do not attend in Term 2 are days when the children will be in the care of the applicant.
LIVING ARRANGEMENTS
4.That the children spend time/live with each of the parties as follows:
4.1.On a fortnightly basis during the pre-school/school term from the commencement of these Orders until to the conclusion of Term 4, 2025.
4.1.1.In Week A:
4.1.1.1.With the First Respondent from the conclusion of pre school/school or 2.30pm on Thursday until the commencement of pre-school/school or 9.00am on Monday;
4.1.1.2.With the Applicant at all other times.
4.1.2.In Week B:
4.1.2.1.With the First Respondent from the conclusion of pre school/school or 2:30pm on Thursday until the commencement of pre-school/school or 9.00am on the Friday;
4.1.2.2.With the Applicant at all other times.
4.2.On a fortnightly basis during the pre-school/school term from the commencement of Term 4 2025 until the conclusion of Term 4 2026:
4.2.1.In Week A:
4.2.1.1.With the First Respondent from the conclusion of pre school/school or 2.30pm Thursday (or 3.00pm once the children commence primary school) until the commencement of pre-school/school or 9.00am on Tuesday;
4.2.1.2.With the Applicant at all other times.
4.2.2.In Week B:
4.2.2.1.With the First Respondent from the conclusion of pre school/school or 2.30pm (or 3.00pm once the children commence primary school) on Thursday until the commencement of pre-school/school or 9.00am on the Friday;
4.2.2.2.With the Applicant at all other times.
4.3.At the expiration of the period in Order 4.2, and during school terms, with the First Respondent on a fortnightly basis from the conclusion of school or 3.00pm on Thursday until the commencement of school or 9.00am on the Thursday following;
4.4.At the expiration of the period in Order 4.2, and during school terms, with the Applicant on a fortnightly basis from the conclusion of school or 3.00pm on Thursday until the commencement of school or 9.00am on the Thursday following;
4.5.and for the purpose of this Order the First Respondent will nominate by 1 July each year the weeks during the school term that the children will live with him during the school term for the following year.
SCHOOL HOLIDAYS
5.For the purpose of these orders:
5.1.The school holiday period is deemed to commence at the conclusion of school or 3.00pm on the last day of the school term and changeovers shall occur at 3.00pm on the day in the middle of the school holiday period; and
5.2.In the event that the school holiday period consists of an uneven number of days, the parent who has care of the children for the second half of the school holidays shall have care of the child for an additional day at the end of the holidays and shall return the children to school on day 1 of the following school term.
5.3.In the school holidays following terms 1, 2 and 3 in 2025-2027 the children will be in the care of:
5.3.1.The applicant for the first half of the school holidays in odd numbered years and the second half of the school holidays in even numbered years; and
5.3.2.The first respondent for the second half of the school holidays in odd numbered years and the first half of the school holidays in even numbered years.
5.4.Subject to orders 4 and 5 of the orders of 7 May 2025, in the long summer school holidays in 2025-2027 the children will be in the care of:
5.4.1.In odd numbered years, the applicant for the first two weeks of the holidays commencing when preschool or school concludes on the last day of term and ending at 3pm on the day which follows the 14th night in the applicant’s care;
5.4.2.In odd numbered years, the first respondent for the second two weeks of the holidays commencing at 3pm the day which follows the 14th night in the applicant’s care and concluding at 3pm on the day which follows the 14th night in the first respondent’s care;
5.4.3.Thereafter in odd numbered years for half of the remaining nights in the care of the applicant from 3pm on the day which follows the 14th night in the first respondent’s care until 3pm on the middle day (or in the event of an uneven number of days the day following the middle day at 3pm);
5.4.4.Thereafter in odd numbered years for the remainder of the school holidays period with the first respondent commencing at 3pm on the middle day or the day following and concluding with return to school on the first day of term.
5.4.5.In even numbered years, the first respondent for the first two weeks of the holidays commencing when preschool or school concludes on the last day of term and ending at 3pm on the day which follows the 14th night in the first respondent’s care;
5.4.6.In even numbered years, the applicant for the second two weeks of the holidays commencing at 3pm the day which follows the 14th night in the first respondent’s care and concluding at 3pm on the day which follows the 14th night in the applicant’s care;
5.4.7.Thereafter in even numbered years for half of the remaining nights in the care of the first respondent from 3pm on the day which follows the 14th night in the applicant’s care until 3pm on the middle day (or in the event of an uneven number of days the day following the middle day at 3pm;
5.4.8.Thereafter in even numbered years for the remainder of the school holidays period with the applicant commencing at 3pm on the middle day or the day following and concluding with return to school on the first day of term.
5.5.Subject to orders 4 and 5 of the orders of 7 May 2025, in the long summer holidays commencing 2028 and each even year thereafter:
5.5.1.For the first half of the school holidays with the first respondent; and
5.5.2.For the second half of the school holidays with the applicant.
5.6.Subject to orders 4 and 5 of the orders of 7 May 2025 in the long summer school holidays commencing in 2029 and each odd numbered year thereafter:
5.6.1.For the first half of the school holidays with the applicant; and
5.6.2.For the second half of the school holidays with the first respondent.
5.7.Commencing in 2025 the equal time arrangement in orders 4.3 and 4.4 shall continue through the school holidays after terms 1, 2 and 3 unless the parties agree otherwise in writing.
INJUNCTIONS
6.The Applicant be restrained from facilitating the children’s attendance for treatment at SS Allied Health Service or any other allied health practice.
7.Unless agreed in writing, each parent is restrained from attending any extra-curricular, sporting and pre-school/school events or volunteer roles at school or pre-school at times when the children are not in their respective care pursuant to these Orders, except for end of term/end of year ceremonies, graduations or extra-curricular award ceremonies.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
There are both financial and parenting proceedings before the Court for final determination. When the matter came before the Court on 7 April 2025, senior counsel who appeared for each party agreed that the matter was unable to be completed in the allocated hearing dates and consented to bifurcation such that the matter commenced only in respect of parenting matters.
The applicant (Mr Phillips) was in a de facto relationship with the first respondent (Mr Nicholson) between 2012 and 15 August 2023.
The applicant and first respondent are the parents of:
(a)X born 2020;
(b)Y born 2020 (“the children”).
The second respondent has notice of, but has not participated in, the litigation. She is the birth mother of Y.
The parties have two children both born as a consequence of surrogacy arrangements. X is genetically the child of the applicant and Y is genetically the child of the first respondent.
The single expert psychologist, Ms B, wrote: “[a]t some point the parents do need to disengage from the Court process and learn to live with [one] another and coparent as allies and not as enemies, as this is what their children need.” The Court itself cannot affect this type of change; that is for the parties.
The current orders provide that the children divide their time between the homes of the applicant and first respondent such that they are with the first respondent from Tuesday afternoon to Wednesday morning each week and alternate weekends from Friday afternoon to Sunday afternoon; they are otherwise with the applicant. There is provision for holidays and special occasions.
The applicant sought orders as contained in a Minute of Order which if made would see the parties exercising joint decision making responsibility for the children. The first respondent sought an order for sole decision making responsibility regarding schooling and medical issues.
Regardless of the orders concerning the allocation of parental responsibility, the parties agreed it was in the best interests of the children that they live with the parents in an equal time arrangement. It was agreed that there should be a graduated approach from the present configuration to an equal time arrangement. The parties disagreed about the timetable for implementation of the equal time arrangement.
The parties entered into consent orders on 7 May 2025 which reflected their agreement about day to day decision making, special occasions (Easter, Christmas, the children’s birthdays, Father’s Day), communication between the children and the parents, changeover, restraining orders, travel and various other specific issues orders.
A significant issue in the case involved what orders (if any) should be made in relation to the children’s interaction with the first respondent’s new partner.
Parental responsibility
The applicant was seeking sole parental responsibility right up until the trial, but his final minute of order seeks an order for joint decision making responsibility as between he and the first respondent concerning major long term issues. The first respondent opposes the making of an order for joint decision making responsibility in respect of educational and medical decisions on the basis that such an order would not operate in the best interests of the children.
Section 61DAA(1) provides:
(1) If a parenting order provides for joint decision-making by persons in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of the persons:
(a) to consult each other person in relation to each such decision; and
(b) to make a genuine effort to come to a joint decision.
My focus in this case is on how an order relating to parental responsibility may impact on the children. The first respondent advances two primary reasons for seeking sole parental responsibility regarding educational and medical issues:
(1)Past experience has indicated that joint decision making is productive of conflict which impacts on the children;
(2)Past experience had demonstrated an inability to communicate effectively such that decision making is delayed.
The first respondent also contended that the applicant’s approach to the children’s education (in particular preschool attendance) demonstrates a limitation on the applicant’s capacity to make child focused decisions relating to the children’s education.
The single expert in her report of 7 June 2024, cognisant of the poor coparenting relationship between the applicant and first respondent, nonetheless recommended that they have equal shared parental responsibility. It would appear that the recommendation arises out of the following observations: these children have two intelligent capable parents, the children have a good relationship with both parents, and the parties are broadly in agreement that the children’s time should ultimately be spent equally in both households.
In a theoretical sense I accept the single expert’s observations are supportive of an order for joint decision making responsibility. If I had any confidence that the parties could - based on the evidence - reach a prompt child focused decision collaboratively without potential exposure to conflict, I would make that order. There are a number of matters which persuade me that such an order would be aspirational and would function contrary to the children’s best interests.
I am satisfied that the parties discussed the future education of their children during the relationship and agreed (prior to separation) that an approach whereby the children attended the local NSW government school from kindergarten to year four and an independent school from year five was their preferred approach.
After separation the first respondent moved from the parties’ home at Suburb E and now resides in Suburb W.
The first respondent has been concerned about the level of the children’s attendance at the NN preschool they attend, noting that they are late and absent at a rate which the preschool has identified as impacting on their progress. The applicant says he has kept the children at home when they are tired or when family commitments require same in an effort to meet their needs as toddlers. There is merit in the approaches of both parents. The key issue now is that the children will start school next year and it is appropriate that they are ready and prepared. The preschool has recommended increasing attendance for some time. The parents remain at odds. The decision will lie with the parent who holds decision making responsibility for education. The first respondent has indicated his preference. It appears designed to meet the children’s needs and should be implemented if the preschool can offer Friday as one of the days. Under the applicant’s proposed five/nine arrangement in 2025, Friday is a day where the children are in the care of the first respondent. The first respondent wants the children to increase their days while the applicant resists and wishes to spend more time with the children. While I accept the first respondent has reduced his work, it remains the position that the first respondent is employed while the applicant is currently caring for the children (as he has done historically). Orders increasing the time at preschool during the first respondent’s time strike a balance between the children’s need for more preschool and any sudden change to the time they spend with their primary carer.
The applicant continues to advocate that the children attend OO School from kindergarten to year four, after which time he says that if they are offered a place at PP School in year five, then they should commence attendance at PP School. At least until recently the applicant was considering an independent school located near the Suburb E property (Exhibit 6, Applicant’s affidavit [245]). PP School is located in Suburb QQ. The applicant says that he hopes to remain living in the Suburb E property and that the children have a social and support network in the local area. I accept this is of advantage to the children. The reality for the children is that as a consequence of the orders which both parties seek, the children will in short course spend equal time in each household and so there will be longer travel from one household than the other. It follows that travel time is unlikely to be a significant driving force in the selection of schools.
If I make an order that the applicant exercise parental responsibility, then he will select the children’s school. There was nothing in his evidence to support the conclusion that he would select a school for reasons other than to meet the needs of the parties’ children. His first choice is PP School. The parties only differ in their approach to attendance at PP School by reason of timing. The first respondent would now have the children attend from kindergarten – if they are offered a position - whereas the applicant would prefer they start in year five.
The evidence at present suggests the children may be offered a position in kindergarten. If they are, then the practical effect of an order for sole decision making responsibility for education in favour of the first respondent would be that he would be likely to accept that position and the children would commence PP School in kindergarten in 2026.
The only identifiable disadvantage to the children identified by the evidence is driving distance and the related issue that their schoolmates may not live in close proximity to the children. Against that, the school is a school selected by both parents as a suitable option for their children. The applicant indicated in his evidence two things which bear on the discussion: firstly, he was prepared to move to live in closer proximity to the children’s school. While he couched that in terms of a move to facilitate attendance in year five, there is no logical reason revealed by the evidence as to why that could not occur sooner (and in fact he told the single expert he would be willing to move to an area within a school catchment area to attend a preferred school). Secondly, the applicant indicated that while he preferred to remain living at Suburb E that may depend on the outcome of the parties’ financial proceedings, leaving open the possibility that he would move house in any event.
The first respondent’s alternate proposal about education then proposes three additional independent schools, and in the absence of an offer from any of those schools, OO School. There is actually considerable agreement between the parties about the approach. It is the execution which leads to indecision and conflict.
The Court makes orders at a point in time with the hope that those orders will function to the benefit of the children into the future. However, the circumstances of the children and adults will inevitably change, and it is appropriate to have regard to the making of orders which are designed to assist the parties to avoid the need for a return to the Court. An order which permits a decision to be made without the need for consensus is indicated in this case.
Ironically, in final submissions both applicant and first respondent contended that the order which he sought in relation to parental responsibility would be the order most likely to reduce conflict. The submission was made in a context where both parties have referred to the adult dynamics and adult conflict as reflecting a power dynamic. The applicant’s opposition to the first respondent exercising sole parental responsibility was couched as the applicant’s prospective difficulty implementing decisions of the first respondent. If there was evidence to suggest the first respondent would make capricious decisions about education or health, then the applicant’s position would be objectively sound. However, couched only as an adult’s difficulty in implementing decisions which had been made by his former partner, then I am less convinced it is a matter which should stand in the way of an order which will serve the children’s bests interests. The conflict is more likely to arise from the parties’ inability to reach consensus and the need for continued and repeated interaction concerning contested decisions, than from an order which permits a unilateral decision.
The parties have been exercising parental responsibility for the children in the post-separation period by reason of the operation of s 61C of the Act, since no order has been made affecting the parental responsibility they held at law. The occasion has arisen for the parties to confer about issues relating to health and education. The parties have had the benefit of legal advice during this period. Mr Phillips has had the benefit of psychological assistance during this period. Both parties have had the benefit of family therapy during this period. Notwithstanding all this scaffolding, the parties have been unable to agree, particularly in respect of educational decisions. It is axiomatic that the children require timely decisions about significant matters. Orders for sole parental responsibility are made where the evidence establishes that such order is the order above all other available options which will best meet the needs of the children. That is the position here. My chief reservation about the making of the order is that the applicant might perceive it as attributing a lesser value to him as a parent or as somehow sidelining him in circumstances where he ought ideally be involved in making long terms decisions. But the orders are made for the benefit of the children and not the parents and this order has the best chance of reducing conflict and facilitating timely decision making.
Having determined that joint decision making responsibility is not in the children’s interests, it is necessary to consider which parent should exercise the responsibility. This order is not a test of who has the better relationship with the children, it is a question of what the evidence demonstrates about which parent, on balance, is likely to make a timely child focused decision about educational and medical issues. I have concluded that the first respondent should hold parental responsibility. The first respondent has diligently listened to and endeavoured to implement the recommendations of the children’s preschool. The applicant submitted that the first respondent had sought to influence the recommendations and opinions of the preschool and accordingly, those recommendations should be rejected or approached with caution.
I accept that there was an alignment between the educational views expressed by the NN School teacher and those of the first respondent, but I do not accept that the views were aligned because of influence of the first respondent. The first respondent was responding to and pursuing the recommendations which originated from the NN School. Both parents attended a parent teacher conference in September 2024. The teacher followed up by email (Exhibit 11):
I would suggest increasing [X’s] days to 6 days per fortnight soon, or by the latest from week 1 Term 4 (from 15 Oct), then 8 days per fortnight (4 days weekly) in January 2025, and every day in April 2025…I would suggest the same pace for [Y] except for the timing to start coming 5 days a week…”
The first respondent wanted to implement this approach. The applicant was resistant. The children’s attendance did not change. It is clear that the educator’s recommendation was based on her knowledge and experience, her interactions with the children and her views as to school readiness. It is not plain why the applicant was reluctant to implement this recommendation. The first respondent’s actions, to the extent that they encouraged the preschool to express a view may be seen as the first respondent asking the preschool to confirm opinions they had already expressed.
Indeed the applicant suggested in January 2025 that the children be removed from NN School in January 2025 (Exhibit 32) and be cared for by the applicant, or should the first respondent require, attend a different centre and/or a different school readiness program. The applicant asserted that his position was based on NN School no longer assisting the children to transition to mainstream schooling and his availability. This position was not supported by objective evidence.
The applicant has been critical in the tone of his correspondence with the children’s schools. Parents should be engaged with education providers and are not obliged to agree with all proposals for their children, but it is in the interests of the children that all correspondence is undertaken with respect and in a calm, polite and measured tone. The applicant’s correspondence has not always met such a standard.
The applicant has evidenced a distrust of the first respondent concerning medical issues which is not supported by the objective evidence. A stark example was the text message which the applicant sent the first respondent on 9 September 2023 when, after being reassured by text that X had not had any accident, fall or bleeding nose, the applicant replied: “Have you injured him?” The first respondent was measured in his response, given the accusation and sought to de-escalate the emerging conflict. A similar level of unnecessary accusation is exhibited in the applicant’s messages concerning what was ultimately diagnosed as eczema for X in December 2024 (Exhibit 25).
The applicant seeks a number of prescriptive orders about the children’s doctors, dentists and orthodontists. There is merit in the children having a single General Practitioner, but I do not have evidence which would permit me to make a best interests determination about the identity of the medical practitioners or the choice of medical practice and in those circumstances decline to so do.
It follows that I have concluded that it is in the children’s best interests that the first respondent exercise sole decision making responsibility in respect of educational and medical decisions. The remaining long term decisions will be made jointly (but are on the evidence far less likely to arise with frequency).
Implementation of equal time arrangements
The single expert prepared two reports in the matter and responded to a request for information pursuant to the Rules. She attended to give evidence and was cross-examined.
Ahead of her oral evidence, the report writer was informed that the parties had narrowed the scope of their dispute such that they agreed that the children should live in an equal time arrangement but that they remained in dispute about when that equal time arrangement should be put in place.
It was clear from the evidence of the single expert that she considered the fact that the parties had been able to reach some consensus as being a positive outcome for the children. In addition, an equal time arrangement was within her contemplation as an appropriate arrangement for these children, provided that the evidence had not established that there was a safety risk.
It was therefore necessary to pay particular attention to the evidence which she gave about the manner in which such an arrangement ought be implemented.
The applicant had agreed to an immediate transition from an arrangement whereby the children spent four nights a fortnight with the first respondent to an arrangement whereby the children spent five nights per fortnight with the first respondent. This then left for the Court’s determination the timing of any graduated arrangements to implement an equal time arrangement. The applicant sought that the children spend time with the first respondent for five nights a fortnight until the beginning of year 6 (2032) whereas the first respondent sought that the children move to five nights then an additional night in year one, before equal time commenced in year 2 (2028).
The single expert indicated that, in her view, it was useful for the children to have continuity in the arrangements; for example, if there was to be a block in one week and a single day in the following week, there was an advantage to the single day being a day on which the children saw that parent in the other week. For example, if time were to commence for the weekend on Thursday evening, then there was value to the children in having their time in the other week be a Thursday evening. There were two particular advantages identified. The first was that the children would have the benefit of participating in any specific organised activity with that parent on the set day. The second identified advantage was that for younger children, it would help them to know the routine of which house they would be in during the school term. Accordingly, the configuration of the five/nine arrangement in the applicant’s proposal would best achieve this aim.
The single expert gave evidence to the effect that it would be best for these children that they be given 6 to 12 months between any change to allow them to master that change. Further, she indicated that if the arrangement whereby the children spent five nights in the care of the first respondent and nine nights in the care of the applicant were to be implemented forthwith, that arrangement might stay in place during 2026 when the children are to be in kindergarten. Commencing with the school year in 2027, following the recommendations which the single expert made, it would be appropriate to increase the children's time in the care of the first respondent by a day such that during 2027 they divided their time between the applicant 8 nights and the first respondent 6 nights. Commencing term 1 2028 it would be appropriate for the children to move into the equal time arrangement contemplated by the single expert.
In 2028 the children will be commencing year 2.
The single expert was asked to offer her opinion on what type of arrangement might be suitable for the children during school holiday periods. While the children are young, she was of the view that, save for the purpose of overseas travel, the children could divide their time equally between the two parents on a week about basis. If the children were to be travelling in the long summer school holidays, her evidence supported the conclusion that those holidays could be divided in blocks to allow each parent the opportunity of a two-week block for travel. Commencing at the conclusion of year 2 in 2028, the children are likely to be of a sufficient age where they would be able to divide the long holidays equally in blocks of three to four weeks depending upon the length of the school holidays at the school the children ultimately attend.
The evidence of the report writer and the parties’ evidence indicate clearly that the nature of the parties’ post-separation relationship at present has impacted upon their capacity to undertake face-to-face changeover without exposing the children to tension and/or conflict. It follows that the orders which I will make for changeover will provide that all changeovers, where practicable, take place at the children's preschool or school.
The applicant submitted that the transition to equal time should be slower to take into account the nature of the children’s relationship with him as their primary carer. The applicant has provided the majority of the children’s care since birth, although the first respondent has also been a hands-on parent. The children have, according to the unchallenged evidence of the single expert, a close relationship with both parents. The applicant is more anxious about the children spending time away from him. He has kept them home from preschool on days when they were not unwell and indicated to NN School at one stage that “[X] may be feeling the stress and anxiety around of [sic] these current criminal proceedings.” This observation is telling. There would be no reason for X who was four years old to have any knowledge of the existence of criminal proceedings involving the applicant, let alone be sufficiently stressed by them so as to prevent attendance at preschool. It is likely that the applicant was stressed. The single expert observed “[t]here appears to be an anxious element to the children’s relationship with [Mr Phillips], with [X] acutely aware of the parental conflict and parental expressed emotions.”
The first respondent has the assistance of a nanny (as the parties did prior to separation). The nanny, in her affidavit, indicated that she assisted the first respondent with transport, cooking and other tasks for the children but that the first respondent was often present and providing care at the same time and that he was at all times “totally engaged” with the children when they were in his care. I accept that unchallenged evidence.
As a consequence of having been primarily responsible for the children’s care, it is evident that the applicant feels as though the necessary change to this arrangement as a consequence of the parties’ separation is a challenge to his role as a parent. He was critical of the first respondent for inquiring of the children’s preschool whether the children were in attendance (and critical of the childcare centre for answering the first respondent’s query), yet he had himself written to the centre saying “[Mr Nicholson] Pick up time is 2:30pm Tue & every 2nd Friday and drop off time is 9am Wed. Please contact me immediately upon any changes to this…” (Exhibit 27).
The single expert identified that the applicant is still trying to understand the breakdown of the relationship. From the content of Exhibit 30, in particular an email to his psychologist dated 12 March 2025, that remains the case. It appears as though this animus is preventing reflection on the needs of the children or causing the applicant to conflate his needs with those of the children.
It is likely that the first respondent’s conduct immediately after separation, in removing Y (and thereby separating X and Y) has had an ongoing impact on the parties’ coparenting relationship, as has the first respondent’s reticence to provide accurate and transparent information about his new relationship. However, some time has passed since the events immediately following separation and the single expert report indicates the first respondent has demonstrated insight about the impact of his actions immediately post-separation. The first respondent’s changes to his work arrangements also demonstrate a proven capacity and commitment to providing care. I am satisfied that an arrangement whereby the children spend five nights, then six nights and finally seven nights in each parties’ care – phased in over two and a half years - takes into account their age, maturity and the parents’ respective parenting capacities and is consistent with the unchallenged evidence of the single expert [135].
School Holidays
The parties agree on arrangements relating to Christmas Day. It is therefore necessary to consider what arrangements should be made for the holidays at the end of Terms 1,2 and 3 and for the long summer school holidays.
There is a general agreement between the parties that the school holidays should be divided equally. Unfortunately, the parties have been unable to reach a consensus about how that equal time arrangement should be achieved.
It would appear sensible that when the parties commence an equal time arrangement, then the week about regime continues through the short school holidays. Accordingly, it will be necessary for me to indicate what arrangements should apply until that time.
In the longer holidays the children may benefit from spending a longer period in the care of each parent to facilitate travel, as discussed by the expert above. In the first few years before the equal time arrangement is in place, that might be achieved by ensuring that each party has at least one two-week block. After that time the children will be older and could probably divide the long holidays in half – albeit that the first half will be broken up by Christmas.
In 2025, 2026 and 2027 the long summer holiday could be broken up to the effect that the parties share the time equally, with no block being longer than 2 weeks. The exact configuration will be dictated by the length of the school holidays for the school which the children attend. It follows that I do not propose to make the orders which either party seeks for the long holidays but adopt an approach which draws on both proposals – acknowledging the need to minimise the number of changeovers, the need to facilitate travel and the need to divide the time equally. Accordingly, I will order that the applicant have the first two weeks, the first respondent the second two weeks, and the remaining days be divided equally. In 2028 the children will move to 2 blocks.
Injunctions
The Act, at s 60CC(2)(a), requires that I consider what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child)
The parties have, by asking the Court to make orders for equal time, in due course, indicated that questions relating to the children’s safety are not tied to the number or configuration of the time spent in each household.
One of the significant issues for the children which is relevant to their welfare but may fall short of being described as a safety issue is the question of the children’s exposure to conflict between their parents. I will discuss this separately as it relates to changeovers.
It follows from the manner in which the parents have framed their respective cases that the safety issues are ones which, if established by the evidence, the parties have asked be addressed by the making of injunctions.
On 7 May 2025 I made the following injunctions by consent:
8.That on a without admissions basis both parties be restrained from consuming any illicit substances or any medication other than that prescribed by their respective GP or treating doctor when they each have the care of the children or in the 24-hour period before they each have the care of the children.
9.That on a without admissions basis, the First Respondent is restrained from allowing [Mr D] to bathe, shower, dress or attend to the children’s personal hygiene.
10.That the parties are restrained from discussion with the children’s educators, health or allied health professionals attended by the children, any asserted disclosures made by the children in relation to [Mr D], any denials made by the children as to the allegations against [Mr D] or any outcome of any investigation, without the convent of the other party.
(Exhibit 58)
The applicant asks that in addition to those injunctions I make the following orders:
31.1 That on a without admissions basis, the First Respondent is restrained from:
…
31.2 Leaving the children unattended in the care of [Mr D];
31.3 Allowing [Mr D] to travel interstate or outside the Commonwealth of Australia with the children until the children are 8 years of age.
(Exhibit 61)
It is necessary to set out the background which led to the applicant seeking those orders.
When the applicant met with the single expert in interview for the preparation of the first report, the report records that the applicant “was asked about whether he has concerns for the children’s safety in [Mr Nicholson’s] care. He said he was concerned the children would be groomed and sexually abused by someone (not [Mr Nicholson]).” It was apparent that the applicant was predisposed to be concerned about this possibility based on his own experience of sexual abuse – a factor he acknowledged. The applicant accepts that his own history has made him hypervigilant. The first respondent having read the comments of the applicant to the single expert was concerned that the applicant would make allegations and described his attitude to the subsequent allegations as a “strong belief” that they had been fabricated.
On a previous occasion, the applicant made a report that X had been sexually abused by a childcare worker at about 18 months of age. The applicant made a police report about this in late 2022.
The single expert raised the applicant’s concern with the first respondent during the interviews for the first report, and the first respondent told the report writer he believed that the applicant was referring to Mr D who he said did not live with him although they “might be going out.”
The interviews with the parties for the purpose of the first single expert report took place between 22 March 2024 and 10 April 2024. The report was dated 7 June 2024.
The children travelled with the first respondent and Mr D to Country C between two dates in mid-2024. The first respondent did not tell the applicant Mr D was accompanying the children and he on this holiday. When changeover took place at McDonalds the applicant’s affidavit records: “[w]hen I collected them, I observed [Mr D], who I then understood to be a neighbour of [Mr Nicholson], with his arms around [X] tickling his cheek and hand feeding him…”
The applicant says that on 21 July 2024, X sat on his lap while they were playing a game and squirmed and bounced on his lap and then pushed down on his groin.
It is plain that the applicant interpreted these two events as sinister.
Later the same day the applicant says X was acting out and “reached out directly and grab [sic] my penis”. The applicant’s affidavit sets out the conversation he says occurred. The video at the home recorded the interaction between the applicant and the child (Exhibit 34 is an agreed transcript of this video).
The conversation is recorded (in part) as follows:
Applicant: Don’t pay with my doodle. That is unacceptable. If an adult is letting you play with their doodle we need to have a – that is illegal they need to go to jail. Is someone doing that to you?
[X]: Mmm yes [Mr D]
Applicant: [Mr D’s] letting you play with his doodle?
[X]: No, [Mr D] is playing with my doodle.
(as per original)
The applicant attended upon the children’s GP in July 2024. The GP made a report. The police arranged for X to be interviewed the next day. No disclosure was made during the interview.
The Department of Communities and Justice (DCJ) were involved following the disclosure. DCJ implemented a safety plan. In late 2024 DCJ found there was insufficient evidence to substantiate that abuse had occurred.
The applicant says that in August 2024 X told a young friend “[Mr D] touches my penis and plays guitar on it.”
I accept that significant mistrust has been exacerbated by the first respondent’s reluctance to provide basic information, in particular about Mr D travelling with him and commencing to live in his home with the children. While I accept that the first respondent’s reluctance is a response to the fear of scrutiny and accusation – the combination of the applicant’s anxiety and the first respondent’s secrecy have made the situation worse.
The applicant says that on 1 January 2025 X told him that Mr D had wiped the children’s bottoms on at least 15 occasions.
On 16 January 2025 the applicant says Y told him “[Mr D] took off his pants and tickles me on the bottom and I don’t like it.”
In March 2025 the applicant reported to his psychologist that X had told him that Mr D would run his finger along and tickle the area of his anus and perineum whilst applying nappy cream. He further said that X reported he was asked by the first respondent to repeat “[Mr D] doesn’t touch my doodle” 66 times. The applicant said he had spoken to DCJ in early 2025.
The first respondent’s evidence was that there was no opportunity for any of these incidents to have occurred because, apart from rare occasions in public places Mr D had not been alone with the children or either of them.
The applicant elected not to cross-examine Mr D. Mr D denied all allegations and gave evidence that he had moved out of the house between mid and late 2024 while the police investigation took place. Mr D gave the following unchallenged evidence:
18.I am not involved in the personal care of the children, such as bathing, toileting, or bedtime, as this is undertaken by [Mr Nicholson] with the assistance of [Ms RR]. I do not perform any care-giving role for the children, and whilst the children are in [Mr Nicholson’s] care, he spends all of his time with the children. I am never alone with the children, as there is always either [Mr Nicholson] of [Ms RR] around.
19.The children prefer to sleep in [Mr Nicholson’s] bedroom upstairs in the [Suburb W] property, and I have my own bedroom in the [Suburb W] property which is a four-bedroom house.
The applicant elected not to cross-examine the nanny Ms RR. Ms RR gave the following unchallenged evidence:
15. I am aware of the allegations made by [Mr Phillips] in relation to [Mr D] touching [X] in a sexual manner. I have viewed the video in which [X] states to [Mr Phillips] that he had told me that [Mr D] had inappropriately touched him. This conversation did not occur between [X] and I. The children are my number one priority and I would never knowingly allow them to be in any environment that may be unsafe.
16. I observe that the children have a good relationship with [Mr D] and they enjoy spending time with him. Although [Mr D] spends time with the children, he is not involved with their bedtime or morning routines and does not undertake in bathing the children or taking them to the toilet. I observe that [Mr D] is extremely caring and thoughtful in relation to the children and I have never observed any behaviour to suggest the contrary. I have not observed any behaviour from [Mr D] towards the children which could be considered inappropriate.
The evidence of Ms RR is material because she has been present throughout the period in which the allegations have been made, and there is no suggestion that she would be anything other than protective of the children. She explicitly denied that the children or either of them had raised any issues relating to Mr D with her. While I am not required to accept her unchallenged evidence, I have no reason to reject it in this case.
The applicant did not ask the Court to find that Mr D had abused the children but submitted that a central issue in the case was “the risk posed by [Mr D] [sic] to the children” acknowledging that “the Court may not be in a position to make a positive finding as to risk.” This is a curious submission in a case where the applicant elected not to cross-examine the person alleged to pose the risk or the nanny to whom the applicant said the children reported making disclosures. One of the most important tools at the disposal of the Court is cross-examination conducted by the parties. It is an aid to fact finding.
I cannot find on the evidence that abuse has occurred. The question remains as to whether, notwithstanding the inability to make a positive finding, it is appropriate to consider whether there remains a risk of future harm: Isles & Nelissen (2022) FLC 94-092. The applicant says that the court should approach the situation in accordance with the recommendations of the single expert – namely cautious and protective. In one sense, the first respondent agrees and has consented to an order which is of this nature.
The applicant sought injunctions which would have the effect of preventing the first respondent’s new partner from being present at changeover. The evidence did not establish that there had been any incident at changeover involving Mr D. The applicant sought an injunction that would restrain the first respondent from permitting Mr D travelling interstate or overseas with the children until they turn eight. The single expert identified excluding Mr D from events as being disadvantageous for the children in circumstances where the first respondent’s new partner is a member of the children's household when they are in the care of the first respondent, and it is likely in due course that they will desire the first respondent's new partner to attend activities and will consider it unusual if he is prevented from so doing. The single expert was not ignorant of the fact that the presence of the first respondent’s new partner is likely to be experienced as inflammatory by the applicant, potentially impacting the children due to the increased conflict between the parents. The single expert said, aspirationally, words to the effect that ultimately, for these parents, their love is greater than what is going on such that they can push past what is going on for their children. I place some stock in her observation given she has some longitudinal experience with this family, having prepared two reports for the Court. I do not propose to exclude the respondent’s partner from attendance at changeover or holidays.
The first respondent sought an order that would prevent both parents attending extra-curricular sporting and school events during the other party’s time. I am reluctant to make such an order since it would be in the interests of the children to have both parents present at events which are important to the children. However, in this case to make the parallel parenting operate with least opportunity of exposing the children to conflict, I am persuaded to make the order. In reality, because the time will move to equal time it provides many opportunities for the involvement of both parents separately and carves out ceremonies and graduations. The parties can waive compliance with its terms by agreement.
Allied Health Professional
The first respondent seeks an order that would prevent the applicant from having the children attend on an allied health professional. There was very little evidence before the Court in either party’s case about, on the one hand, the alleged need for allied health treatment and, on the other, the alleged risks of allied health treatment. I am left with the following:
(a)The first respondent, a health professional and parent of the children, opposes their being treated by an allied health professional;
(b)The applicant, knowing this opposition, has had the children treated (including consulting the allied health professional about the sexual abuse allegations) anyway.
As I have concluded that the first respondent should have sole decision making responsibility, then it follows that he will be in a position to make these decisions in the future. Because the applicant has had the children treated without informing the first respondent I will make the injunction.
Special occasions
Australia Day
By consent the parties made provision for the children to spend time with the first respondent for New Year. This affords the children the opportunity to share in a celebration with cultural significance for them and for the first respondent.
In submissions, the parties addressed the applicant’s contention that orders should be made to provide that the children spend Australia Day with the applicant.
There are a number of reasons why I am not persuaded that this order is in the children’s best interests. The children are both Australian and have two parents – one who is from Country C by birth and heritage but also an Australian citizen. There does not appear to be a child focused reason for one parent to have each Australia Day with the children. In addition, the proposed Australia Day orders would require two changeovers in a single day. As discussed below such an arrangement is counter indicated.
Parents’ birthdays
The applicant did not seek a specific order about the children spending time with him on his birthday but was content for the children to spend time with Mr Nicholson on Mr Nicholson’s birthday. The first respondent sought a period of four hours for each parent with the children on that parent’s birthday (should it fall on a weekend or holiday) in the event that the children are not otherwise in his care.
I am not persuaded that at this stage it is in the children’s interests to have two changeovers on a single day while the conflict between the parties remains significant. I do not propose to make the order. That should not prevent the parties, in due course, if the coparenting relationship improves, agreeing to such an arrangement.
Surname
The applicant in his Amended Minute of Final Orders (Exhibit 61) tendered on the final day of hearing sought for the first time an order to change Y’s surname so that Y and X share the same surname. The parties had led no evidence, and there had been no cross-examination, and accordingly the applicant’s senior counsel acknowledged that it was not an order that could properly be considered. I agree.
Changeover
The applicant sought the following order:
28.All school pick-ups and drop offs shall be attended by either party in person unless the other party is informed that a third party is picking up or dropping off the children and the name of that third party.
Each parent is, by agreement, to exercise day to day decision making for the children when the children are in their respective care. One of the incidences of such decision making would be determining who was collecting the children from school or delivering the children to school. There is no evidence to establish why notifying the other parent is necessary or desirable having regard to the children’s best interests. In the circumstances of this case the imposition of an obligation to notify the other parent presents as more likely to engender conflict.
I accept the evidence of the single expert at [145] of her initial report:
Moving towards independent parenting and implementing boundaries between the parents is a theme that needs to be addressed in this matter. It is important that the parents approach coparenting with the attitude of collaboration, respect for each other’s role in the children’s lives, respect of each other boundaries, and one of mindfulness in not impinging on each other’s space. It is apparent that 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’] narrative around [Mr Nicholson] being challenged to take on advice from him about parenting of the children. The event around [Mr Phillips] attending to the children’s school to address perceived concerns around the children’s attire is a prime example of interference by [Mr Phillips], and whilst well intended, it sparked a chain of issues with [Mr Nicholson] and the school staff. It also interferes with effective coparenting when one parent makes plans for the children during the other parents’ time or attempts to make changes during the other parents’ time – often leading to further entrenched conflict. [Mr Nicholson] presented as a capable parent independent of [Mr Phillips]. It is agreed that [Mr Nicholson’s] separation of the children was not child focussed, however he now acknowledges that this was a poor judgment call on his part.
I decline to make any order concerning notification about the person who is providing transport to or from preschool or school.
I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 23 May 2025
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