Phillips & Nicholson [2025] FedCFamC1F 251 (9 April 2025)

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 Phillips & Nicholson has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. The applicant ("Mr Phillips") was in a de facto relationship with the first respondent ("Mr Nicholson").
2. The applicant and respondent are the parents of:

(a) X born in 2020;

(b) Y born in 2020;

("the children").

1. The second respondent has notice of, but has not participated in, the litigation. She is the birth mother of Y.
2. 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 respondent.
3. In the middle of the final hearing the respondent made an application for interim orders.
4. The first respondent sought orders that:

(1) Order 1 of the orders made 12 September 2023 is suspended until 3:00pm on 11 April 2025;

(2) The children live with the first respondent from the making of this order until 3:00pm on 11 April 2025.

1. 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.
2. The school holiday orders are relevant in so far as they provide for time with the first respondent to start at 3pm on 11 April 2025.
3. I have only heard the evidence of the applicant, that is I have only heard cross-examination of the applicant. That evidence commenced on Monday 7 April 2025 and concluded on Wednesday 9 April 2025. The applicant was emotional while giving his evidence. He began crying while taking the oath on the first day of the hearing.
4. On 9 April 2025 when cross-examination commenced the applicant indicated at one point that he had not had much sleep the night before.
5. At 11:16am on 9 April 2025 senior counsel for the first respondent indicated that, subject to inspecting newly returned subpoenaed documents, he had finalised his cross-examination. I gave the parties additional time to inspect the documents and senior counsel for the applicant indicated an intention to speak to his client to shorten re-examination, this was to occur with consent.
6. At 11:56am senior counsel for the applicant indicated his client's health was a concern and it was necessary for him to seek medical attention. I am now told that an appointment was made for him at a nearby medical practice at 1:30pm at which time it was intended that his solicitor would walk with him to the appointment. That did not occur. There was no opposition to an adjournment and I foreshadowed recommencing at 1:30pm. The matter resumed just before 2pm at the parties' request.
7. Senior counsel for the first respondent asked the applicant if he had seen a doctor. He replied "no". He was asked if he had sought medical advice. He also responded "no".
8. The applicant presented, consistently with the evidence, as under slept. He was also emotional. The issue for the Court is one of risk on an interim hearing where it is not possible to call upon evidence of an expert nor is there any medical evidence before the Court.
9. I am to be concerned only with the interests of the children and not the interests of the adult parties.
10. I need to balance upset that might be caused to the children by not seeing the applicant at the end of their day today against the question of whether or not there may be an impact to the capacity of the applicant from him having been under slept and emotional and believing at least at some point that he required medical attention.
11. Giving evidence in proceedings concerning care arrangements for one's children is objectively stressful and difficult.
12. I am not persuaded, nor did senior counsel for the first respondent suggest, that I ought to conclude that the children are at any risk of physical harm from the applicant such that they should, for that reason, be removed from his care.
13. However, I am persuaded that it is sensible and in the interests of the children for the two 4‑year-olds to be parented by the parent who has not experienced the level of distress which the applicant has indicated from the witness box he has, by his own description.
14. In circumstances where the other parent is available (and was to have assumed care for 10 days commencing this Friday) I consider on an interim basis that it is in the best interests of the children that they be collected today and remain in the care of the first respondent until they are returned during the holidays. I stress this is not a finding about parental capacity but the interim allocation of where the children should live as between two homes until the situation can be revisited.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Christie.