FEDERAL CIRCUIT COURT OF AUSTRALIA
Chesterman & Royston [2021] FCCA 1908
File number(s): MLC 767 of 2016 Judgment of: JUDGE HARLAND Date of judgment: 18 August 2021 Catchwords: FAMILY LAW – parenting – eight year old twins – both parents have re-partnered and have other children – mother and her children live in City B – father and his children live in City C – whether or not it is in the children’s best interests to live with the mother in City B or with the father in City C Legislation: Family Law Act 1975 (Cth), ss 60B(1)-(2), 60CA, 60CC(2)-(3), 61DA(1)-(4), 64, 65D, 65DAA(1)-(2) Cases cited: AMS & AIF (1999) 24 Fam LR 756
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Taylor & Barker (2007) 37 Fam LR 461
Waterford & Waterford [2013] FamCA 33
Number of paragraphs: 166 Date of hearing: 22-24 June 2021 Place: Melbourne Counsel for the Applicant: Mr Turner Solicitor for the Applicant: Melville Orton & Lewis Counsel for the Respondent: Ms Byrnes Solicitor for the Respondent: Brown & Proudfoot ORDERS
MLC 767 of 2016 BETWEEN: MS CHESTERMAN
Applicant
AND: MR ROYSTON
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
18 AUGUST 2021
THE COURT ORDERS THAT:
1.The final Orders made 8 September 2016 and all interim Orders made thereafter be discharged.
2.The children X and Y both born in 2013 (“the children”) live with the father.
3.The parties be restrained by way of injunction from moving the children’s residences to greater than 20 kilometres from their current residence, if doing so would increase the children’s and parties’ travel time required to comply with these orders.
BY CONSENT:
4.The children spend time and communicate with the mother as follows:
a.During school terms:
i.Each alternate weekend commencing from 6:30pm on Friday until 6:30pm on Sunday, with such time to extend to 6:30pm on Monday in the event that the Monday is a public holiday.
b.During the Victorian school holidays as follows:
i.For a period of 10 days during the short term school holidays, at times to be agreed and failing agreement from Friday at the conclusion of the school term to Tuesday of the second week, with the time to recommence after the holidays as if it had continued in the same cycle over the holidays, with any changeovers during the school holidays period to take place at 6.30 pm.
ii.During the long summer holidays for one half of the holidays taking into account the Christmas period Orders herein, by agreement and failing agreement, with the mother to have the first half in odd years and the second half in even years and the time to recommence after the holiday in the same cycle as before the holidays as if not interrupted by the holidays, with any changeovers during the school holidays period to take place at 6.30 pm.
iii.Such further and other times as agreed between the parties in writing.
c.The…
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CaseChat Overview and Summary
The court was required to determine the primary residence of the children, X and Y, and to establish a comprehensive schedule for their time with each parent, including provisions for school terms, holidays, and special occasions. Additionally, the court needed to address ongoing communication between the parents and children, parental responsibility, and restrictions on parental conduct towards each other and the children.
Judge Harland reasoned that the children's best interests would be served by living with the father in City C. This decision involved discharging previous orders and establishing new arrangements. The court ordered that the children live with the father, with specific provisions for their time and communication with the mother, including alternate weekends, defined periods during school holidays, and arrangements for Christmas and Father's/Mother's Day. Equal shared parental responsibility was maintained, and injunctions were put in place to prevent denigration of either parent and to ensure communication was limited to matters concerning the children, primarily via text or email, except in emergencies. The court also ordered that changeovers occur at a specific location in City D unless otherwise agreed.
Orders
Orders of the court
THE COURT ORDERS THAT:
1. The final Orders made 8 September 2016 and all interim Orders made thereafter be discharged.
2. The children X and Y both born in 2013 (“the children”) live with the father.
3. The parties be restrained by way of injunction from moving the children’s residences to greater than 20 kilometres from their current residence, if doing so would increase the children’s and parties’ travel time required to comply with these orders.
BY CONSENT:
4. The children spend time and communicate with the mother as follows:
a. During school terms:
i. Each alternate weekend commencing from 6:30pm on Friday until 6:30pm on Sunday, with such time to extend to 6:30pm on Monday in the event that the Monday is a public holiday.
b. During the Victorian school holidays as follows:
i. For a period of 10 days during the short term school holidays, at times to be agreed and failing agreement from Friday at the conclusion of the school term to Tuesday of the second week, with the time to recommence after the holidays as if it had continued in the same cycle over the holidays, with any changeovers during the school holidays period to take place at 6.30 pm.
ii. During the long summer holidays for one half of the holidays taking into account the Christmas period Orders herein, by agreement and failing agreement, with the mother to have the first half in odd years and the second half in even years and the time to recommence after the holiday in the same cycle as before the holidays as if not interrupted by the holidays, with any changeovers during the school holidays period to take place at 6.30 pm.
iii. Such further and other times as agreed between the parties in writing.
c. The children spend the following special occasions with each parent, with the spend time arrangements set out in Order 4(a) and (b) above be suspended where required to facilitate same:
i. For Christmas:
A. With the Mother from 6:30pm Christmas Eve until 6:30pm Boxing Day in odd years and from 6.30pm on Boxing Day until 6.30pm on 28 December in even numbered years; and
B. With the Father from 6:30pm Boxing Day until 6.30pm on 28 December in odd years and from 6.30pm on Christmas Eve until 6:30pm Boxing Day in even numbered years;
ii. In the event that the children’s time with the Father falls on Mother’s Day, that the children’s time with the Father be suspended on the Mother’s Day weekend and in lieu thereof the children shall spend time with the Father on the following weekend.
iii. In the event the children are in the Mother’s care on the Father’s Day weekend, the Mother’s time be suspended from 6.30pm Friday until 6.30pm Sunday on the Father’s Day weekend.
d. Any such further or other times as agreed between the parties in writing.
5. The parents have equal shared parental responsibility for the children.
6. The children be permitted to telephone or communicate by electronic means at any reasonable time they request to do so and the parent caring for them at that time facilitate the communication.
7. Each parent be permitted to telephone or communicate by electronic means with the children at any time they are not in their care on a Tuesday or Thursday at 6:30pm and the other parent facilitate that communication, ensuring the children are available to take the call.
8. Changeovers are to take place at the McDonalds in City D, unless otherwise agreed between the parties in writing.
9. Both parents keep each other informed of their respective telephone numbers (including landline and mobile), email addresses and residential addresses and notify the other within 24 hours of any changes.
10. Both parents do all things necessary to authorise the children’s school to provide to both parents copies of all school reports, newsletters, notices, photo order forms and any other documents that the school would provide to a parent.
11. Each parent be at liberty to attend all school events and extracurricular award events or special events normally attended by parents, including but not limited to sports days, parent teacher interviews, concerts and working bees.
12. Each party be and is hereby restrained by way of injunction from denigrating the other parent or any member of their household or extended family to the children or in the presence or hearing of the children and from permitting the children to remain in the presence of any other party so doing.
13. The parents communicate via text message or email only, with such communication to be limited to matters pertaining to the children, save in the case of any emergency relating to the children AND FURTHER the parties endeavour to respond to the other’s communication within 24 hours of receipt.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Chesterman & Royston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
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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