FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Estes & Estes [2024] FedCFamC2F 189
File number(s): MLC 2140 of 2022 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 16 February 2024 Catchwords: FAMILY LAW – PARENTING – relocation – mother seeks children (now aged 11 and 8 years) live with her in Region B and for the children to spend time with the father on alternate weekends (from Friday to Sunday), for one additional weekend each month, and for additional holiday time – application resisted by the father who seeks children continue to spend equal time with both parents – evaluation of competing proposals – mother’s application refused – order for children to continue spending equal time with both parents – no order made confining the area in which the parties may live with the children – all other parenting orders made by consent. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC 61DA, 65D, 65DAA, 65DAC
Cases cited: A v A: Relocation Approach (2000) FLC 93–035; [2000] FamCA 715
Adamson & Adamson (2014) FLC 93–622; [2014] FamCAFC 232
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Asher & Wilkinson (2020) FLC 93–945; [2020] FamCAFC 44
Blinko & Blinko [2015] FamCAFC 146
Eddington and Eddington (No. 2) (2007) FLC 93–349; [2007] FamCA 1299
Franklyn & Franklyn [2019] FamCAFC 256
Godfrey & Sanders (2007) 208 FLR 287; [2007] FamCA 102
Malcolm & Monroe (2011) FLC 93–460; [2011] FamCAFC 16
Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520McCall & Clark (2009) FLC 93–405; [2009] FamCAFC 92
Morgan & Miles (2007) FLC 93–343; [2007] FamCA 1230
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Rochford & Fitzhugh [2019] FamCAFC 218
Sampson and Hartnett (No.10) (2007) FLC 93–350; [2007] FamCA 1365
Sayer & Radcliffe and Anor (2012) 48 Fam LR 298; [2012] FamCAFC 209
Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22
Taylor & Barker (2007) FLC 93–345; [2007] FamCA 1246
U v U (2002) 211 CLR 238; [2002] HCA 36
Ulster & Viney (2016) FLC 93–722; [2016] FamCAFC 133
Wagstaff & Wagstaff (2022) 65 Fam LR 461; [2022] FedCFamC1A 119
Zanda & Zanda (2014) FLC 93–607; [2014] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 235 Date of last submission/s: 23 November 2023 Date of hearing: 20 & 21 November 2023 Place: Melbourne Counsel for the Applicant Ms Agresta Solicitor for the Applicant Keane Family Law Counsel for the Respondent Ms Mansfield Solicitor for the Respondent Conlan Cummings Lawyers ORDERS
MLC 2140 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS ESTES
Applicant
AND: MR ESTES
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
Procedural
1.All previous parenting orders be discharged.
Parental responsibility
2.The applicant (“mother”) and respondent (“father”) (together the "parties” or…
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CaseChat Overview and Summary
The court found that the mother’s proposal was not in the best interests of the children, and dismissed her application. The court considered that the mother’s proposal would result in the children spending less time with the father than the father’s proposal. The court found that the father’s proposal, which was that the children spend equal time with both parents, was in the best interests of the children. The court found that the father’s proposal would allow the children to have a more stable and consistent routine and maintain their relationships with their peers and other family members.
The court ordered that the children continue to spend equal time with both parents, and made no order confining the area in which the parties may live with the children. All other parenting orders were made by consent.
Orders
Orders of the court
MLC 2140 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS ESTES
Applicant
AND:
MR ESTES
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
Procedural
1. All previous parenting orders be discharged.
Parental responsibility
2. The applicant (“mother”) and respondent (“father”) (together the "parties” or the “parents”) have equal shared parental responsibility for the children, X born in 2012 and Y born in 2015 (“the children”).
Care arrangements
3. The children live with each parent as agreed by the parents in writing and failing agreement:
(a) In alternate weeks, on a “week-about” basis, with changeover taking place at the commencement of school/9.00 am each Friday with such time to continue during school holidays except where specifically provided for otherwise in these orders; and
(b) With the parent they are not otherwise living with each week on Wednesday (or such other day as agreed by the parties in writing) from after school to 7.00 pm with such time suspended during school holidays.
4. The children spend time with the mother for Mother’s Day from after school Friday to before school Monday on the Mother’s Day weekend.
5. The children spend time with the father for Father’s Day from after school Friday to before school Monday on the Father’s Day weekend.
6. The children spend time with each parent on each child’s birthday as agreed in writing and failing agreement, the children spend time with the parent that they are not otherwise living with on that day:
(a) From after school to 7.00 pm if a school day;
(b) If not on a school day then from 4.00 pm on the birthday to 9.00 am the following morning.
7. The children spend time with the mother on the mother’s birthday and the father on the father’s birthday as agreed in writing and failing agreement:
(a) From after school to 7.00 pm if a school day;
(b) If not on a school day then from 4.00 pm on the birthday to 9.00 am the following morning.
8. The children spend time with each parent for Easter as agreed in writing and failing agreement:
(a) From 6.00 pm the day before Good Friday to 6.00 pm Easter Saturday with the father; and
(b) From 6.00 pm Easter Saturday to 6.00 pm Easter Monday with the mother.
9. The children spend time with each parent for Christmas as agreed in writing and failing agreement:
(a) From 10.00 am on 23 December to 10.00 am Christmas Day with the mother in odd-numbered years and the father in even-numbered years; and
(b) From 10.00 am Christmas Day to 10.00 am 27 December with the mother in even-numbered years and the father in odd-numbered years.
Children’s communication
10. The children and parents be at liberty to communicate with each other through electronic means at all reasonable times.
Changeover
11. Unless otherwise agreed by the parties in writing and where changeover does not take place at school, changeover occur by the parent who has care of the children returning the children to the other parent at the other parent’s residence at the conclusion of the children’s time with them.
Communication
12. The parties each:
(a) Keep the other advised at all times of their current residential address and mobile telephone numbers;
(b) Advise the other immediately in the event that either child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practice attended;
(c) Authorise any medical practitioner, hospital or medical practice upon or at which child may attend from time to time, to communicate with the other party in respect to the children’s medical condition and/or requirements;
(d) Authorise all schools at which either child may attend from time to time, to:
(i) Provide the other, at the expense of the other, copies of all school reports, school notices and newsletters, school photographs and examples of school work in relation to the child;
(ii) Communicate with the other, either by telephone, in writing or by personal attendance, in respect to the children’s progress at school, and inform each other of any emergency, remedial or correctional treatment required by either child as soon as is practicable; and
(iii) Permit the other to attend all school functions to which parents are normally invited, subject to any school policy.
Extra-curricular activities
13. Each party is authorised to attend all school and extra-curricular activities involving the children, including:
(a) Sporting fixtures;
(b) Extra-curricular activities that allow for parental attendance;
(c) School functions and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen duties.
14. The children’s school, extracurricular activity providers and any other educational facility upon whom the child attend is authorised to release to each parent all information usually provided to parents at the requesting parent’s cost.
Medical
15. Each medical, health or allied professional upon whom the children attend is authorised to release to each parent all information usually provided to parents at the requesting parent’s cost.
Injunction
16. Each party is restrained from making negative, derogatory or disparaging comments about the other parent or members of the other parent’s family or household in the presence or hearing of the children.
Travel
17. Each party may travel with the children during the time the children would usually be in the other parent’s care only with the written consent on the non-travelling parent and if such travel is agreed, the children spend makeup time with the non-travelling parent on such dates as nominated by the non-travelling parent provided that, unless otherwise agreed in writing, the makeup time is not to occur on special days.
18. Neither parent requires the other parent’s consent to travel interstate or internationally if such travel does not take place during time the children would usually be in the non-travelling parent’s care but is required by this order to notify the other parent of the contact details and location of where the children will be staying.
19. In the event a parent intends to travel internationally with the children, the travelling parent:
(a) Ensure that the children’s recommended travel vaccinations are up to date at the travelling parent’s cost;
(b) Provide the non-travelling parent with evidence of prepaid return airfares and full particulars of all accommodation the children will be staying in no later than 21 days prior to the intended travel;
(c) Obtain travel insurance that provides for unlimited medical coverage for the children and Covid-19 insurance cover and provide the non-travelling parent with a copy of the certificate of currency of insurance no later than 21 days prior to the intended travel;
(d) Is restrained from taking the children to a Country/location which is listed on the Smartraveller website as “Do not travel” and/or “reconsider your need to travel”;
(e) Indemnifies the non-travelling parent in relation to any and all costs associated with the travel and anything that occurs to the children during the travel; and
(f) Ensure that the children and the non-travelling parent are able to communicate with each other at all reasonable times.
20. In the event a parent intends to travel internationally with the children and the children’s passports need to be renewed then:
(a) The parent intending to travel with the children prepare the passport applications including obtaining the required passport photos at their cost and provide the completed application to the other parent for signing;
(b) The other parent sign the passport application forms within 14 days of receiving the application forms from the parent intending to travel; and
(c) The non-travelling parent reimburse the applying/travelling parent an amount equivalent to one half of the standard non-urgent passport application fee for each child within 21 days of receiving a copy of the receipt for the payment of the fees.
21. When the children are not travelling internationally their passports be retained by the mother and if the father is travelling internationally with the children:
(a) The mother provide the father with the children’s passports within 7 days of receiving the information from the father referred to in orders 19(b)-(c) of these orders;
(b) The father return the children’s passports to the mother within 7 days of returning home from the international travel; and
(c) And the mother provide a certified copy of the children’s passports to the father.
Obligations, consequences of contravention and assistance with orders
22. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
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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