FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clay & Raleigh (No 2) [2024] FedCFamC2F 858
File number(s): CAC 644 of 2022 Judgment of: JUDGE LIVERIS Date of judgment: 5 July 2024 Catchwords: FAMILY LAW – PARENTING APPLICATION – parenting arrangements for the child – change of name Legislation: Family Law Act 1975 (Cth) ss 60CC Cases cited: Beach & Semmler (1979) FCWA 1
Chapman & Palmer (1978) FLC 905
Giessauf & Giessauf (2004) FamCA 848
Grella & Jamieson [2017] FamCAFC 21
Lysons & Lysons (2019) FamCAFC 29
Mahony & McKenzie (1993) FamCA 78
Division: Division 2 Family Law Number of paragraphs: 72 Date of last submission/s: 10 May 2024 Date of hearing: 10 May 2024 Place: Darwin Counsel for the Applicant: Ms Hew Solicitor for the Applicant: Australian Family Lawyers - Canberra Counsel for the Respondent: Mr Fernandez Solicitor for the Respondent: Grays Legal NT ORDERS
CAC 644 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CLAY
Applicant
AND: MS RALEIGH
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
5 JULY 2024
THE COURT ORDERS:
1.That all previous Orders be discharged.
Change of Name
2.The child currently referred to as X RALEIGH born in 2021 be known as X CLAY-RALEIGH with such change to be reflected on the child’s birth certificate, Medicare card, passport and any other relevant forms of identification for the child.
3.Both parties be authorised to apply to the Registrar of Births, Deaths and Marriages to have the change of name recorded on the child’s birth certificate pursuant to the Births, Deaths and Marriages Registration Act 1996.
4.In the event that either party fails to sign the documents necessary to give effect to these orders, pursuant to section 106A of the Family Law Act1975 (Cth) (“Act”) the Registrar of the Federal Circuit and Family Court of Australia be appointed to execute any such required documents on behalf of the party to give force and effect to this order.
5.That pursuant to section 26 of the Births, Deaths and Marriages Registration Act 1996, the Registrar register the name of the child in accordance with these orders.
Parental Responsibility
6.That the mother shall have sole parental responsibility for the child X born in 2021 with respect to the living arrangements of the child and, more particularly, in which State or Territory the child lives, with this to be exercised as follows:
(a)That the mother must provide to the father six (6) months’ notice of her intention to relocate to a different town or city, with such notice to include her new proposed residential address and the reason for relocation; and
(b)The father will have the opportunity to provide his views; and
(c)If the parties are unable to reach agreement in respect of the mother’s intended relocation, they will attend mediation; and
(d)That the mother will not relocate the child more than once per two (2) years.
7.If the father intends to relocate to the town or city in…
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CaseChat Overview and Summary
The central legal issues the court had to address included whether the child's name should be changed, the allocation of parental responsibility, the specifics of the parenting arrangements, and the details of how the parents should communicate and co-parent. The court also needed to consider the implications of the parents living within or outside of a 35km radius of each other, as this affected the visitation schedules.
Judge Liveris concluded that the child's name should be changed to reflect both parents' surnames, X Clay-Raleigh, and that this change should be recorded on all relevant identification documents. The court granted sole parental responsibility to Ms Raleigh concerning the child's living arrangements, with specific conditions for relocation. The court established a detailed visitation schedule for Mr Clay, varying based on the distance between the parents' residences and the child's age. The parents were granted equal shared parental responsibility for major long-term decisions. The court also detailed specific arrangements for school holidays, special occasions, and communication between the parents. Both parents were authorised to travel overseas with the child, subject to certain conditions and agreements.
The final orders of the court included the discharge of previous orders, the change of the child's name, specific visitation schedules, conditions for relocation, and detailed guidelines for communication and co-parenting. Both parents were also granted permission to travel overseas with the child, provided they met certain conditions.
Orders
Orders of the court
CAC 644 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR CLAY
Applicant
AND:
MS RALEIGH
Respondent
ORDER MADE BY:
JUDGE LIVERIS
DATE OF ORDER:
5 JULY 2024
THE COURT ORDERS:
1. That all previous Orders be discharged.
Change of Name
2. The child currently referred to as X RALEIGH born in 2021 be known as X CLAY-RALEIGH with such change to be reflected on the child’s birth certificate, Medicare card, passport and any other relevant forms of identification for the child.
3. Both parties be authorised to apply to the Registrar of Births, Deaths and Marriages to have the change of name recorded on the child’s birth certificate pursuant to the Births, Deaths and Marriages Registration Act 1996.
4. In the event that either party fails to sign the documents necessary to give effect to these orders, pursuant to section 106A of the Family Law Act 1975 (Cth) (“Act”) the Registrar of the Federal Circuit and Family Court of Australia be appointed to execute any such required documents on behalf of the party to give force and effect to this order.
5. That pursuant to section 26 of the Births, Deaths and Marriages Registration Act 1996, the Registrar register the name of the child in accordance with these orders.
Parental Responsibility
6. That the mother shall have sole parental responsibility for the child X born in 2021 with respect to the living arrangements of the child and, more particularly, in which State or Territory the child lives, with this to be exercised as follows:
(a) That the mother must provide to the father six (6) months’ notice of her intention to relocate to a different town or city, with such notice to include her new proposed residential address and the reason for relocation; and
(b) The father will have the opportunity to provide his views; and
(c) If the parties are unable to reach agreement in respect of the mother’s intended relocation, they will attend mediation; and
(d) That the mother will not relocate the child more than once per two (2) years.
7. If the father intends to relocate to the town or city in which the child resides, he is to provide forty-five (45) days’ notice to the mother in writing before any changes to arrangements with the child occur.
8. Subject to Order 6 of these Orders, the parties shall have equal shared parental responsibility and joint decision making for major long-term decisions with respect to the child.
9. That the child spend time with the parties as agreed in writing, and failing agreement, as follows:
(a) If the parties do not live within 35km of each other, in accordance with Orders 10 to 17;
(b) If the parties live within 35km of each other, in accordance with Orders 18 to 24.
Parenting arrangements:
If the parties do not live within 35km of each other
10. That the child live with the mother.
11. That the child spend time with the father as agreed, and failing agreement, once every four (4) weeks for four (4) consecutive days (“the trip”), on days nominated by the father pursuant to these Orders as follows:
(a) From the date of these Orders until 1 December 2024 on a nominated Thursday, Friday, Saturday and Sunday:
(i) From 8:30am until 6:30pm;
(b) From 1 December 2024 until 1 July 2025:
(i) From 9.00am until 7.00pm on the nominated Thursday and Friday; and
(ii) From 9.00am on the nominated Saturday until 6.30pm on the nominated Sunday.
(c) From 1 July 2025 until the child commences primary school:
(i) From 8.30am until 6.30pm on the nominated Thursday; and
(ii) From 9.00am on the nominated Friday until 6.30pm on the nominated Sunday.
If the parties do not live within 35 km of each order and the child has not yet commenced primary school
12. From January 2025 until the child commences primary school:
(a) At least once (1) per calendar year, the mother shall bring the child to the city or town where the father lives in order for the child to spend time with the father in accordance with what would otherwise occur in accordance with Order 11;
(b) The time in Order 12(a) will replace the time the father would ordinarily spend on the “the trip” in that four-week period and arrangements will continue as if the “trip” had occurred.
13. The father be responsible for paying the costs of the child’s flights to enable the child to spend time pursuant to these Orders.
If the parties do not live within 35 km of each order and the child has commenced primary school
14. From when the child commences primary school:
(a) From 9.00am on the nominated Thursday until 6:30pm on the nominated Sunday; and
(b) For seven (7) consecutive overnight days during two nominated school holiday periods with this time to replace “the trip” for that month.
15. When Monday following the father’s time is a public holiday in the city in which the child lives, the Father shall be permitted to spend time with the child as agreed between the parties in writing, or otherwise from 10am to 6:30pm, subject to the following: if the Monday following the father’s time is not a public holiday where the child lives and the child has reached school age, the child will go to school.
16. If the father is able to spend further time where the child resides, or the child is in the city in which the father lives, then the parties will arrange for further reasonable time between the child and the father in addition to that outlined in Orders 6 to 9 above, and the mother shall facilitate reasonable additional time between the child and the father.
17. To facilitate spend time pursuant to these Orders and in relation to interstate travel:
(a) The father shall provide at least 14 days’ notice to the mother of his intention to travel to the place where the child lives to spend time with the child; and
(b) The mother shall provide at least 14 days’ notice to the father of any intention to travel interstate with the child.
If the parties live within 35km of each other
18. The child live with the mother.
19. From the time of these Orders until 1 December 2024 each alternate weekend on Thursday, Friday, Saturday and Sunday as follows:
(a) From 8.30am until 6:30pm.
20. From 1 December 2024 until 1 July 2025 the child spend time with the father in a fortnight arrangement as follows:
(a) In week 1:
(i) From 8.30am until 6:30pm each Friday; and
(ii) From 8:30am Saturday until 6:30pm Sunday.
(b) In week 2, from 3.00pm Wednesday until 6:30pm Thursday.
21. From 1 July 2025 until the child commences primary school the child spend time with the father in a fortnight arrangement as follows:
(a) In week 1:
(i) From 8.30am Friday until 9.00am Monday;
(b) In week 2
(i) From 8:30am Wednesday until 6:30pm Thursday.
22. In the first year of primary school the child spend time with the father on a week about basis from the conclusion of school or 3.00pm each Friday until the commencement of school or 9.00am on the following Friday morning with this arrangement to continue during school holiday periods.
23. In circumstances where the father and the child are able to spend further time other than that outlined in Orders above the parties will arrange further reasonable time between the child and the father and the mother shall facilitate reasonable additional time between the child and the father (e.g. short visits and involvement in the child’ routine activities).
24. In circumstances where the father and the child are able to spend further time other than that outlined in Orders 18 to 23 (pertaining to time if the parties live within 35km of each other) above, the parties will arrange further reasonable time between the child and the father and the mother shall facilitate reasonable additional time between the child and the father (e.g. short visits and involvement in the child’s routine activities).
Changeover
25. That changeover take place at a location as agreed in writing, and failing agreement:
(a) At the child’s school on days the child is attending school; and
(b) On other days (including until the child commences schooling):
(i) If time is occurring in the mother’s hometown or city, with the father to collect the child from the mother’s home at the commencement of time and drop the child off at the mother’s home at the conclusion of time; and
(ii) If the time is occurring in the father’s home town or city, with the father to collect the child from the mother’s accommodation in that town or city, and the mother to collect the child from the father’s home at the conclusion of time.
School holidays (whether or not the parties live within 35km of each other)
26. In the first year that the child commences primary school the child will spend time with the father as follows:
(a) One period of five (5) nights in the holidays at the end of Terms 1, 2 or 3; and
(b) One block of up to ten (10) nights in the Term 4 holidays.
27. From the second year that the child is at primary school, the child will spend time with the father as follows:
(a) One period of seven (7) in the holidays at the end of Terms 1, 2 or 3; and
(b) One block of up to twenty-one nights in the Term 4 holidays.
Christmas – spend time with
28. For Christmas in 2024 and 2025 the child will spend time with the mother on Christmas day.
29. In even numbered years commencing 2026 the child spend time with the father from 3.00pm on Christmas Eve until 10.00am Boxing Day.
30. In odd numbered years thereafter, the child will spend time with the mother from 3pm on Christmas Eve until 10am on Boxing Day.
Notation: the parties agree that if they are in the same place for Christmas Day the party spending time with the child will facilitate reasonable time with the other parent and the child on Christmas Day.
Special occasions
31. Notwithstanding any Orders contained herein, should the child not already be spending time with the mother, the child spend special occasions with the mother as follows:
(a) From 5:00pm the Saturday before Mother’s Day (which falls on a Sunday) to 5:00pm on Mother’s Day with the mother;
(b) From 9:00am to 7:00pm on the mother’s birthday, with the expectation that the child will attend school or day-care if it falls on such day;
32. Notwithstanding any Orders contained herein, should the child not already be spending time with the father and if the father is in the same city or town as the child then the mother will facilitate the child spending time with the father as follows:
(a) For at least 4 hours on the child’s birthday as agreed;
(b) From 9:00am until 7:00pm on the father’s birthday with the expectation that the child will attend school or day-care if it falls on such day;
(c) In 2024, from 9:00am to 5:00pm on Father’s Day;
(d) Commencing 2025, from 5:00pm on the Saturday before Father’s Day (which falls on a Sunday) to 5:00pm on Father’s Day; and
(e) For at least 4 hours on Easter Sunday as agreed.
33. That if the father is not in the city or town the child lives in, the mother will facilitate the child video-calling the father between 10-11am Australian Central Standard Time (ACST), or the time zone the child lives in, or at a reasonable time as requested by the father, for approximately 15 minutes, on the following days:
(a) The child’s birthday;
(b) The father’s birthday;
(c) Father’s Day;
(d) Christmas Day; and
(e) Easter Sunday.
Revisiting final parenting orders
34. Should either party wish to commence proceedings for the reconsideration of the final Parenting Order, the parties must first participate in Family Dispute Resolution processes.
Communications
35. The parties shall use an agreed upon “parenting app” to communicate non-urgent matters regarding the child. The parties shall keep mobile telephone communication open for urgent matters regarding the child, or when the parenting app and/or internet malfunctions.
36. In addition to the communication outlined in Order 20, that the parent caring for the child shall facilitate the child having video-call communication with the other parent as follows and shall do all things to encourage the calls to last at least 15 minutes:
(a) On Sundays between 9.00am at 10.00am Australian Central Standard Time (ACST), or the time zone the child lives, and
(b) On Wednesdays between 6.00pm and 7.00pm ACST; and
(c) At other times as agreed between the parties, with the parent seeking to make the call to provide the other parent with reasonable notice.
37. Each parent shall keep the other informed in relation to their current contact details including email address, home residential address and mobile telephone number and notify the other within forty-eight (48) hours of any change to the above.
38. That in the event the child is to stay overnight at a temporary location for more than two (2) consecutive nights, the parent with care of the child will notify the other party of the temporary address at least twenty-four (24) hours before the child commences staying there, or as soon as reasonably practicable if twenty-four (24) hours is not possible.
39. That each parent agrees to be respectful in all mobile, email and telephone communication with the other party.
40. That each parent agrees to speak to, and about, the other parent respectfully, and be restrained from denigrating or criticising the other in the presence or hearing of the child at all times, and to not allow any other person to speak negatively about, denigrate or criticise, the other parent in the presence of the child at all times, or permit the child to remain in the presence or hearing of a person doing so.
41. That neither parent shall discuss these proceedings or these orders in the presence or hearing of the child.
42. Each parent, when speaking with the child, will refer to the other parent by mum/dad or similar (as preferred by the other parent), and not by the parent’s first name or other identifier.
43. That in the event of an emergency involving the child, the parent with whom the child is with shall notify the other parent as soon as reasonably practicable, using the quickest form of communication.
44. That the parties will provide the child’s educational and recreational facilities, treating medical and allied health practitioners with the name of the other parent and sign any authorities to allow the other party to access all information from those services, and will provide the other parent with copies of those authorities as soon as reasonably practical after they are received.
45. The parties will request that all of the child’s medical or allied health practitioners upload all relevant medical information (as would usually be uploaded) to the child’s My Health Record.
Passport Orders
46. That both parties be permitted to travel overseas with the child as agreed between the parents in writing provided the following conditions are met:
(a) Unless otherwise agreed between the parties, the proposed country is a signatory to the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”) and the Hague Convention is in force between Australia and that country.
(b) That the parents do not travel to a country where DFAT has issued a ‘Do not travel’ (Level 4) or ‘Reconsider your need to travel’ (Level 3), or equivalent warning.
(c) The proposed travel is compliant with any relevant government regulation and takes account of any government travel advice (including www.smarttraveller.gov.au).
(d) The proposed travel period does not encroach upon the father’s time with the child, or if it does, then make up time shall occur as agreed between the parents in writing.
(e) Unless otherwise agreed between the parties, the travelling parent has provided to the non-travelling parent, at least eight (8) weeks’ notice with the proposed dates of departure, return, the destination/s and at least four (4) weeks prior to departure provide the following:
(i) Copies of return airfares purchased for the child;
(ii) An itinerary containing the addresses and contact details for all accommodation where the child will be staying during the period of travel, and contact phone number and other means of mobile contact on which the child and parent can communication throughout the trip;
(iii) General details of proposed activities in which the child will engage while on the trip;
(iv) Evidence of comprehensive travel insurance for the child covering both medical and associated travel.
47. The mother shall retain the child’s passport and ensure that the child has his passport with him at the time of any international travel with his father.
48. Both parties shall do all necessary acts and sign all documents to facilitate obtaining of any visa that may be required for the child’s travel within twenty-one (21) days of being notified by the other parent.
NOTATIONS
A. The parties have agreed that travel by the father or the mother to Country B will not be objected to on the basis that Country B is not a signatory to the Convention.
B. The parties have agreed that travel by the mother or father to City C, Country D will not be objected to on the basis that Country D is not a signatory to the Convention.
C. The parties have agreed that travel overseas by the father with X will be permitted only once consecutive overnight time has commenced.
D. Orders 6 – 8, 10 – 11, 25, and 31 – 48 were made by consent.
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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