FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Colby & Briscoe [2023] FedCFamC2F 1273
File number(s): MLC 4464 of 2022 Judgment of: JUDGE JENKINS Date of judgment: 26 October 2023 Catchwords: FAMILY LAW – parenting – final hearing – relocation – parties living in Melbourne – mother seeking to relocate to Region B – risk of harm to children – alcohol and anger management issues – exposure to conflict – children’s wishes Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 64B, 65D, 65DAA, 67Z, 67ZC Cases cited: A & A: Relocation Approach [2000] FamCA 751
Adamson & Adamson [2014] FamCAFC 232
Grella & Jamieson [2017] FamCAFC 21
Heath v Hemming (No 2) [2011] FamCA 749
KB & TC [2005] FamCA 458
Morgan & Miles [2007] FamCA 1230
Oberlin & Infeld [2021] FamCAFC 66
Starr & Duggan [2009] FamCAFC 115
Division: Division 2 Family Law Number of paragraphs: 94 Date of last submission/s: 28 August 2023 Date of hearing: 17-18 August 2023 Place: Melbourne Counsel for the Applicant: Mr Moisidis Solicitor for the Applicant: Brown and Co Lawyers Counsel for the Respondent: Ms Johnson Solicitor for the Respondent: Zenith Lawyers And Consultants ORDERS
MLC 4464 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR COLBY
Applicant
AND: MS BRISCOE
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children of the relationship, X and Y, both born in 2012 (“the children”).
2.The children live with the mother.
3.The children spend time with the father on a fortnightly basis during the school term in each alternate week from 3.30pm Tuesday to 6.00pm on Sunday, commencing in the second week of each school term.
4.The children otherwise spend time with the father as follows:
(a)During the gazetted school term holiday periods on a week about basis as agreed between the parties in writing and in default of agreement, from the conclusion of school on the last day of term until 4:00pm on the second Saturday in even years and from 4:00pm on the second Saturday until the commencement of school on the first day of term in odd years;
(b)During the gazetted school summer holiday period on a week about basis as agreed between the parties in writing and in default of agreement commencing the first week at the conclusion of the school term during odd years and then commencing the second week (being seven (7) days after the conclusion of the school term) at 10.00am during even years;
(c)For Christmas, from 5:00pm on Christmas Eve until 1:00pm on Boxing Day in odd years;
(d)From 5:00pm on Christmas Day until 1:00pm on Boxing Day in even years;
(e)From 5.00pm on the day prior to Father's Day until 4.00pm on Father's Day;
(f)On the children's birthday in…
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CaseChat Overview and Summary
The court had to decide whether the relocation would be in the best interests of the children, considering factors such as the children's wishes, their exposure to conflict, and the potential harm from alcohol and anger management issues. The court also needed to establish a parenting arrangement that would ensure the children's welfare and facilitate their relationship with both parents. Judge Jenkins evaluated the evidence presented by both parties, including expert testimonies and the children's wishes, to determine the appropriate living arrangements and visitation schedules.
After careful consideration of the evidence, Judge Jenkins concluded that the children should continue to live with their mother in Melbourne. The court found that while the relocation to Region B was not in the children's best interests, the proposed parenting arrangement would allow for sufficient contact with both parents while mitigating the risks associated with conflict and exposure to alcohol and anger management issues. The court ordered equal shared parental responsibility and established a detailed visitation schedule for the father, which included fortnightly visits during school terms and specific arrangements during school holidays and special occasions. The court also included provisions to manage communication, travel, and medical care for the children.
In conclusion, the court ordered that the children would continue to live with their mother, with the father having specified visitation times. The court mandated that both parents cooperate in communication, travel, and medical care, and imposed restrictions on alcohol consumption and leaving the children unsupervised at home. The decision reflected a balanced approach to ensure the children's safety and well-being while maintaining their relationship with both parents.
Orders
Orders of the court
MLC 4464 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR COLBY
Applicant
AND:
MS BRISCOE
Respondent
ORDER MADE BY:
JUDGE JENKINS
DATE OF ORDER:
26 OCTOBER 2023
THE COURT ORDERS THAT:
1. The parties have equal shared parental responsibility for the children of the relationship, X and Y, both born in 2012 (“the children”).
2. The children live with the mother.
3. The children spend time with the father on a fortnightly basis during the school term in each alternate week from 3.30pm Tuesday to 6.00pm on Sunday, commencing in the second week of each school term.
4. The children otherwise spend time with the father as follows:
(a) During the gazetted school term holiday periods on a week about basis as agreed between the parties in writing and in default of agreement, from the conclusion of school on the last day of term until 4:00pm on the second Saturday in even years and from 4:00pm on the second Saturday until the commencement of school on the first day of term in odd years;
(b) During the gazetted school summer holiday period on a week about basis as agreed between the parties in writing and in default of agreement commencing the first week at the conclusion of the school term during odd years and then commencing the second week (being seven (7) days after the conclusion of the school term) at 10.00am during even years;
(c) For Christmas, from 5:00pm on Christmas Eve until 1:00pm on Boxing Day in odd years;
(d) From 5:00pm on Christmas Day until 1:00pm on Boxing Day in even years;
(e) From 5.00pm on the day prior to Father's Day until 4.00pm on Father's Day;
(f) On the children's birthday in odd years, from the conclusion of school until 7.30pm or from 4:00pm on the said birthday until 10:00am the following day, if a non-school day;
(g) At all other times as agreed in writing between the parties.
5. The children's time with the father pursuant to Orders 3 and 4 be suspended as follows:
(a) On Mother’s Day from 5.00pm the day prior until 4.00pm on Mother's Day;
(b) During the gazetted school holiday periods as applicable pursuant to Orders 4 (a) and (b);
(c) During the Christmas period as applicable pursuant to Order 4(c) and (d);
(d) On the children's birthday in even years, from the conclusion of school until 7.30pm; or from 4:00pm on the said birthday until 10:00am the following day, if a non-school day.
Changeovers
6. Changeovers which do not occur at the children’s school, the party whose care the children will be in, shall facilitate the collection of the children from the other parent's residence or otherwise as agreed in writing, including by text message, between the parties.
Communication
7. The children be at liberty to communicate with each parent by telephone or videocall whilst in the care of the other parent with such other parent to initiate such calls and thereafter provide the children with privacy and during any school holiday spend time the other parent be at liberty to contact the children every second day by telephone or videocall.
8. All communications between the parties be via the parenting app known as “App Close” and/or via text message with communications to be limited to the children's needs and care arrangements.
9. Each party notify the other within 48 hours of any change of residential address and/or contact phone numbers and email addresses and any party intending to change their residential address provide written notice no less than 30 days prior to the intended change to the other party.
Schooling
10. Both parents be authorised to receive copies of all correspondences and/or notices usually provided to parents of students at the children’s school, including school reports, photographs, newsletters, notifications of concerts, sports days, speech nights, and parent- teacher interviews, or any other reports on progress and behavioural issues in relation to the children, and shall be entitled to attend all functions to which parents are ordinarily invited or welcome to attend, and that the parties be responsible for any expenses incurred on their behalf as required by the children’s school/organisations for their own copies of school photographs, school reports and other like materials.
11. The parties be permitted to provide a copy of any Court Orders to any school, or childcare the children are attending.
Medical
12. Each party as soon as practicable notify the other of any significant medical issues, illnesses and injuries affecting the children, and medical appointments and hospitalisations, and permit each other to speak with and be provided with updates from the children’s treating doctor(s) and medical professionals about the children’s medical conditions, and attend medical appointments and any hospitalisation if the children are hospitalised.
Non-denigration
13. Each party be restrained by injunction from:
(a) Denigrating or abusing the other and their families and partners in the presence and / or hearing of the children, or permitting any other person to do so;
(b) From discussing these matters or any other proceeding between them in the presence and/or hearing of the children, or permitting any other person to do so;
(c) Discussing parenting arrangements with the children save for the purposes of the general implementation of these Orders.
Travel
14. Each party be permitted to travel with the children overseas during any time that the children are in their care pursuant to these Orders (including any other times by agreement), provided that the travelling party provides a travel itinerary to the other party no later than 30 days prior to the intended departure time, such itinerary to include flight numbers, dates and times of departure and arrival, and telephone numbers and addresses of accommodation.
15. For the purpose of any overseas travel pursuant to paragraph 14 above, both parties do all things necessary and sign all such documents as required to enable passports and visas for the children to be issued or renewed or replaced.
16. The children’s passports be held by the mother and provided to the father at least 14 days prior to any overseas travel by the father with the children pursuant to paragraph 14 above and the father return the passports to the mother within 14 days of the children’s return from overseas.
Miscellaneous
17. Each party be restrained from having a blood alcohol concentration in excess of 0.05% whilst the children are in their care.
18. The father be restrained from leaving the children at home without adult supervision, prior to the commencement of school.
19. All extant applications be otherwise dismissed.
NOTATIONS:
A. Orders 1, 2, 4 (a), (c), (d), (e), (g), 5 (a) (c), 7 to 16 and 18 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).
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.
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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