FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bennett & Harper [2024] FedCFamC2F 1479
File number(s): PAC 4567 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 30 October 2024 Catchwords: FAMILY LAW – PARENTING – Best interests of children. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60CE, 61D. Cases cited: Banks & Banks (2015) FLC 93-637
Jollie & Dysart [2014] FamCAFC 149
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 182 Date of hearing: 16-19 September 2024 Place: Parramatta Counsel for the Applicant: Mr Kenny Solicitor for the Applicant: Matthews Folbigg Pty Ltd Counsel for the Respondent: Mr Batey Solicitor for the Respondent: Godden Lawyers Counsel for the Independent Children's Lawyer: Ms Druitt of counsel with Ms Rebehy of counsel (16 September); Ms Rebehy of counsel (17, 18, 19 September) Solicitor for the Independent Children's Lawyer: Shedden & Associates ORDERS
PAC 4567 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BENNETT
Applicant
AND: MS HARPER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 OCTOBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The father shall have sole decision making responsibility for major long-term issues for the children X born in 2019 and Y born in 2020 (“the children”) provided that:
(a)The father shall advise the mother in a timely manner (in writing and within seven days if non-urgent and within 24 hours if urgent) of any issue in relation to the long term care, welfare and development of either of the children and the decision he proposes to make;
(b)The mother shall, (in writing and within seven days if non-urgent and within 24 hours if urgent), provide her views on the decision the father proposes to make and the father shall take into account and consider any views expressed by the mother;
(c)The father shall advise the mother in a timely manner of his decision.
2.The children shall live with the father as follows:
(a)For a period of four weeks from the date of these orders from 9.00 am on each alternate Thursday until 9.00 am the following Monday.
(b)Thereafter and for a further period of four weeks from 9.00 am on each alternate Thursday until 9.00 am the following Wednesday.
(c)Thereafter, each alternate week from the conclusion of school/childcare on Wednesday (or 3pm on a non-school day) to Friday the following week at 9.00 am (or before school) being nine nights per fortnight.
3.The children shall live with the mother when not otherwise living with the father.
4.Notwithstanding any other order the children shall:
(a)Live with the mother:
(i)From 5.00 pm on the day before Mother’s Day until 5.00 pm on Mother’s Day;
(ii)From 9.00 am on Christmas Eve until 5.00 pm on Christmas Day in 2025 and each alternate year thereafter;
(iii)From 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2024 and each alternate year thereafter;
(iv)From the time…
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CaseChat Overview and Summary
The court identified several key legal issues, including the allocation of decision-making responsibilities for major long-term issues, the residential arrangements for the children, and the mechanisms for communication and cooperation between the parents. It was crucial to ensure that the arrangements facilitated the children's relationship with both parents and promoted their overall well-being. The court also needed to address the parents' ability to manage their differences and communicate effectively regarding the children's upbringing.
In delivering the judgment, Judge Newbrun considered the statutory principles outlined in the Family Law Act 1975, particularly the best interests of the children as the paramount consideration. The court found that sole decision-making responsibility for major long-term issues should rest with the father, provided he maintained open communication with the mother and considered her input. The residential schedule was structured to give the children a balanced and predictable time with each parent, with specific provisions for holidays and special occasions. The court also imposed restrictions on the parents to prevent conflict and ensure a harmonious co-parenting environment. Communication between the parents was mandated through a specific mobile application to facilitate efficient and documented exchanges.
The court's final orders reflect a detailed and tailored arrangement designed to meet the unique needs of the children and their parents. The father was granted sole decision-making responsibility for major long-term issues, subject to specific communication protocols with the mother. The residential schedule was carefully crafted to provide the children with regular and consistent time with both parents, with detailed provisions for holidays and special occasions. The orders also included provisions for communication, cooperation, and restrictions to prevent conflict and ensure a supportive environment for the children.
Orders
Orders of the court
PAC 4567 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR BENNETT
Applicant
AND:
MS HARPER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 OCTOBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. The father shall have sole decision making responsibility for major long-term issues for the children X born in 2019 and Y born in 2020 (“the children”) provided that:
(a) The father shall advise the mother in a timely manner (in writing and within seven days if non-urgent and within 24 hours if urgent) of any issue in relation to the long term care, welfare and development of either of the children and the decision he proposes to make;
(b) The mother shall, (in writing and within seven days if non-urgent and within 24 hours if urgent), provide her views on the decision the father proposes to make and the father shall take into account and consider any views expressed by the mother;
(c) The father shall advise the mother in a timely manner of his decision.
2. The children shall live with the father as follows:
(a) For a period of four weeks from the date of these orders from 9.00 am on each alternate Thursday until 9.00 am the following Monday.
(b) Thereafter and for a further period of four weeks from 9.00 am on each alternate Thursday until 9.00 am the following Wednesday.
(c) Thereafter, each alternate week from the conclusion of school/childcare on Wednesday (or 3pm on a non-school day) to Friday the following week at 9.00 am (or before school) being nine nights per fortnight.
3. The children shall live with the mother when not otherwise living with the father.
4. Notwithstanding any other order the children shall:
(a) Live with the mother:
(i) From 5.00 pm on the day before Mother’s Day until 5.00 pm on Mother’s Day;
(ii) From 9.00 am on Christmas Eve until 5.00 pm on Christmas Day in 2025 and each alternate year thereafter;
(iii) From 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2024 and each alternate year thereafter;
(iv) From the time that Y commences school for one half of the holidays being the first half in years ending with an odd number and the second half in years ending with an even number;
(v) From 3.00 pm until 7.00 pm on each child’s birthday in the event that they would not otherwise spend time with the mother on that day;
(vi) From 9.00 am on Easter Saturday until 5.00 pm on Easter Monday in 2026 and each alternate year thereafter.
(b) Live with the father:
(i) From 5.00 pm on the day before Father’s Day until 5pm on Father’s Day;
(ii) From 9.00 am on Christmas Eve until 5.00 pm on Christmas Day in 2024 and each alternate year thereafter;
(iii) From 5.00 pm on Christmas Day until 5.00 pm on Boxing Day in 2025 and each alternate year thereafter;
(iv) From the time that Y commences school for one half of the school holidays being the first half in years ending in an even number and the second half in years ending in an odd number;
(v) From 3.00 pm until 7.00 pm on each child’s birthday in the event that they would not otherwise spend time with the father on that day;
(vi) From 9.00 am on Good Friday until 9.00 am on Easter Saturday;
(vii) From 9.00 am on Easter Saturday until 5.00 pm on Easter Monday in 2025 and each alternate year thereafter.
5. Telephone or Facetime communication between the child/ren and the parent they are not spending time with shall be facilitated by the caring parent with the non-caring parent at such reasonable times as the child/ren may request.
6. For the purposes of changeover:
(a) Changeover shall take place at school/childcare whenever that is appropriate;
(b) Otherwise, the changeover shall take place at an agreed location and failing agreement at Suburb B McDonalds.
7. Each party is restrained from:
(a) Denigrating the other party or any member of the other party’s family in the presence or hearing of the children;
(b) Discussing these proceedings or any family law matters in the presence or hearing of the children;
(c) Approaching the other party except as provided in these orders.
8. Both parties are entitled to receive any information ordinarily provided to parents from the children’s school/day care or other extra-curricular activities.
9. Both parties will notify the other party in the event that the children, or either of them, receive treatment from a medical specialist and will provide each other with a copy of any relevant report.
10. The parties do all acts and things necessary to make an application to the NSW Registry of Births, Deaths and Marriages to change the name of the children to X Harper-Bennett and Y Harper-Bennett.
11. Both parents are at liberty to attend at any school event to which parents are invited.
12. Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth), the father be authorised to solely apply for passports for the children X Harper (also to be known as X Harper-Bennett pursuant to Order 10 herein) born in 2019 and Y Bennett (also to be known as Y Harper-Bennett pursuant to Order 10 herein) born in 2020.
13. Both parents are permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel during their time with the children pursuant to these orders, or such other times as agreed, provided the following conditions are satisfied:
(a) That the travelling parent provide to the non-travelling parent with no less than 42 days written notice of the proposed travel, including:
(i) Dates of departure from and return to Australia, of the proposed travel, and;
(ii) Purpose and destination of the travel.
(b) That the travelling parent provide to the non-travelling parent, no less than 28 days prior to the proposed travel:
(i) Copy of return airline tickets;
(ii) Copy of itinerary, and;
(iii) A copy of the children’s travel insurance policies and certificates, which include as a minimum, hospital and emergency medical cover.
14. Within 24 hours from the date of these Orders, and failing agreement, the mother and father will download if not already done, the mobile phone application ‘AppClose’, and the mother and father will commence communicating via the mobile phone application from the date of these Orders.
15. Failing agreement, the mother and father shall communicate via the mobile phone application ‘AppClose’ relating to anything arising in relation to the children unless otherwise provided for in these Orders.
16. The children attend at a school nominated by the father but such school shall not be further geographically away from the mother’s home than the distance between Suburb C and Suburb D.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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