Tilbert and Wessels

[2020] FamCA 59

FAMILY COURT OF AUSTRALIA

TILBERT & WESSELS [2020] FamCA 59

FAMILY LAW – PARENTING – Review of Senior Registrar Decision – Where the mother has severe allergy to spices – Whether the child should be able to consume spices in the father’s care – Whether the child should be allowed overnight time with the father – Orders made

APPLICANT: Ms Tilbert

RESPONDENT: Mr Wessels

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 5068 of 2018

DATE DELIVERED: 10 February 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 6 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITOR FOR THE APPLICANT: Maclarens Lawyers

THE RESPONDENT: Mr Wilson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Tin

Orders

IT IS ORDERED

1. That the child X born … 2017, spend time with the father as follows:

   (a)each Wednesday from 9.30am until noon, the father to collect and return him from preschool;

   (b)each alternate Saturday from 9.00am until 5.00pm;

   (c)on the next Saturday, and every fourth Saturday thereafter, from 9.00am on Saturday until noon on Sunday.

2. That for the purpose of weekend time, the father collect X from the mother’s home and return him to the mother’s home unless otherwise agreed.

3. That the application of the mother for an order restricting the food the child eats in the father’s care is dismissed.

4. That pursuant to Sections 65DA(2) and 62B 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 and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5068 of 2018

Ms Tilbert

Applicant

And

Mr Wessels

Respondent

REASONS FOR JUDGMENT

1. Ms Tilbert (“the mother”) and Mr Wessels (“the father”) are the parents of X who was born in 2017.

2. The mother suffers from an extreme allergy to “chilli and spices” and experiences anaphylaxis if she is exposed to either of those allergens.

3. The mother’s sister has an extreme allergy to bacon.

4. There is no suggestion that the child suffers from any allergies.

5. The parents separated in February 2018 after having lived together for about either five or seven years, according to the mother and father respectively.

6. On 23 November 2018, Interim Consent Orders were made for X to spend time with his father.

7. On 10 December 2019, the Senior Registrar, on the application of the father, made orders which, relevantly, provided for X to spend time with the father each Wednesday from 2.30pm until 5.00pm and each alternate Sunday from 9.00am until 5.00pm.

8. The orders also provided “save that for one Sunday in four the time will commence at 5.00pm on Saturday and conclude at 1.00pm on Sunday”.

9. The Senior Registrar declined to make an order sought by the mother requiring the father to ensure that the child, when in his care, does not consume bacon, processed meats, chilli or spices. Rather the Senior Registrar made the following notation:

   The Court notes that the father is aware of the evidence in relation to anaphylaxis in the mother’s household and I note that the Court has drawn to the attention of the father the potential consequences for the child if he were to observe a member of the mother’s household having an anaphylactic reaction. I trust the father’s [sic] notations will guide the father in the actions he takes.

10. The mother sought to review the orders of the Senior Registrar in relation to overnight time and the refusal to make the order relating to the child’s diet. She also sought, and was granted, a stay of the operation of the orders for overnight time.

11. There is a dispute about the proper interpretation of the order for overnight time.

12. The father seeks to vary the orders made by the Senior Registrar so that the Wednesday time commences at 9.30am with the father to collect X from child care and return him to child care at noon. He seeks overnight contact each fortnight and to vary the way in which the overnight time is structured.

13. Because the matter comes before me by way of a review of the Senior Registrar’s decision, it proceeds as a hearing de novo.

14. An Independent Children’s Lawyer (“ICL”) appeared to assist the Court.

OVERNIGHT TIME

1. X has been spending time with the father during day time only pursuant to the orders made in 2018 and then the orders of the Senior Registrar since 10  December 2019.

2. It is not is dispute that X is coping well with the time and it is the father’s evidence that X has his own room in the father’s house and that he happily settles for his afternoon sleep.

3. The father deposed, and the mother did not dispute, that X is returned to his mother, after spending time with his father, in high spirits.

4. The mother opposes any progression to overnight time with the father until February 2021 when X will be aged three years and seven months. She then proposes that X spend alternate weekends with the father from Saturday morning until Sunday evening. She proposes a progression from the existing orders, when X is three years old,  to spending each alternate Saturday and Sunday, but not overnight and then to alternate weekends.

5. The mother deposed that X is a poor sleeper at night and wakes no less than four times during the night and needs to be settled.

6. The father deposed:

   If X was to awake during the night, I would sit by his bed, pat him, sooth [sic] him, reassure him until he falls asleep. I appreciate that patience and understanding is required during the night-time with children.

7. The father deposed that he has talked to X about staying overnight with him and X seems to be excited by the prospect.

8. The ICL supports the father’s application for overnight time but not his application that the overnight time occur every second weekend.

9. I accept that the mother is anxious about X being away from her at night in circumstances where he has not previously spent a night away from her but I am not satisfied that his night time wakefulness, as described by the mother, is a sufficient reason to delay his spending one overnight every four weeks with his father.

10. The mother agreed that, in the event that I should determine that X should spend overnight time with the father, then it was appropriate that this be the night following the full day he spends with his father. I propose to vary the orders to provide that the weekend time is spent on Saturday and that, on one weekend in four, X spends time with the father from 9.00am on Saturday until 12 noon on Sunday. Thus he would stay overnight on every second contact weekend.

11. Neither parent has sought an order progressing this regime and I will not make such an order. However, I indicate my view that a reasonable progression would seem to be that, once X is three years old, he should spend alternate weekends with his father from 9.00am on Saturday until 5.00pm on Sunday.

WEDNESDAY ORDER

1. The current order requires the father to collect X from his preschool in Suburb A and return him to the mother’s residence in Suburb B.

2. The father lives in Suburb C. He deposed that the drive from Suburb A to Suburb B takes him about 40 minutes.

3. The mother works at the preschool where X attends and is at the preschool during the day.

4. The mother opposed any variation of the Wednesday orders on the basis that the current arrangement is working well. However, no submission was made that the variation proposed by the father would not be equally successful.

5. The variation which the father proposed would have the effect that the father would spend the time with X in the Suburb A locality and X would not have to travel for 40 minutes of the time.

6. I accept that this is a preferable arrangement for X.

DIETARY ORDERS

1. The mother’s case in relation to dietary restrictions is based on her allergies and those of her sister.

2. The mother’s sister, who is allergic to bacon, does not live in the same household as the mother and there is no evidence about how frequently X spends time with his aunt.

3. The mother seeks orders in the following terms:

   ·    The father use his best endeavours so as to ensure the child is not exposed to or eat bacon, chilli and/or spices in the chilli family whilst the child is in his care.

   ·    The father shall ensure that the mother is made aware as soon as is reasonably possible that the child has been exposed to bacon, chilli and/or spices.

4. There is no evidence in the mother’s case to explain which spices might be “in the chilli family”.

5. The mother deposed “I am extremely allergic to chilli and spices”. She does not come into contact with any food which is labelled to contain “spices”, “flavours” or “natural flavours”.

6. She does not eat, and does not allow X to eat, ice cream other than vanilla or chocolate; coloured yoghurt; “fast” food or lollies.

7. Whilst it is relatively easy to understand what is meant by the reference to chilli, what constitutes “the chilli family” is not defined and there is no evidence which would allow a definition to be imposed. The reference to “spice” in the orders sought by the mother is even more problematic.

8. The Oxford Dictionary defines “spice” as “One or other of various strongly flavoured or aromatic substances of vegetable origin, obtained from tropical plants, commonly used as condiments or employment for other purposes on account of their fragrance and preservative qualities”. If the orders sought by the mother are to be strictly enforced, X could not eat a piece of cake or a biscuit, both of which often contain spices, for example, vanilla.

9. An order in the terms sought by the mother is not capable of interpretation so as to ensure compliance and is not capable of enforcement.

10. However, the father deposed that, having lived with the mother for seven years, he has a good understanding of her allergies and is conscious of them. He deposed that, when he and the mother lived together, he would thoroughly wash his hands and clean his teeth if he had consumed any food away from home that was likely to cause an allergic reaction. He deposed that X is “thoroughly wiped and cleaned before I hand him back”.

11. The mother does not suggest that, since the orders of December 2019 were implemented, she has suffered any allergic reaction after X was returned by the father but rather that she was, on one occasion, highly anxious that he might have eaten “chicken nuggets” and that she might have a reaction. It is not clear what, in chicken nuggets, might have caused the reaction.

12. The father deposed that he feeds X a largely vegetarian diet and exercises caution in relation to the mother’s allergies. He keeps a food diary with pictures which is available to the mother.

13. On behalf of the mother it was conceded that she must be vigilant, in relation to anyone with whom she comes in contact, to ensure that she does not have contact with allergens.

14. It was also conceded that X cannot have his diet restricted indefinitely. On behalf of the mother, it was submitted that when X starts school, he should not be so restricted.

15. I accept the evidence of the father that he is vigilant about X consuming food that might trigger the mother’s allergies and that he will remain vigilant. I do not accept that the vigilance should extend to ensuring that X does not eat foods that might trigger the mother’s allergies but it should certainly extend to ensuring that she is told if there is any likelihood that anything he has eaten might cause her difficulties so that she can take appropriate precautions.  

16. I do not accept that he should also be required to consider the allergies of the mother’s sister.

17. Both of the parents have the responsibility to teach X about his mother’s allergies so that, when he reaches an age where he is not in the care of a parent at all times, he understands that he must be careful what contact he has with his mother when he has eaten something that might trigger an allergic reaction.

18. That teaching should start as soon as X can understand the concepts involved.

19. I do not accept that it is reasonable to restrict the father’s food choices for X in circumstances where the mother does not suggest that she has had any allergic reaction after X is returned from his father’s care.

20. That application will be dismissed.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 10 February 2020.

Associate: 

Date:  10/02/2020