FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Everhardt & Algeron [2023] FedCFamC2F 1412
File number(s): MLC 9663 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 2 November 2023 Catchwords: FAMILY LAW – PARENTING – interim parenting arrangements – where respondent mother has unilaterally relocated with children – where applicant father seeking interim orders for mother to relocate back to local area with children – competing allegations of risk Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60B, 60CA, 60CC(2), 69ZL. Cases cited: Franklyn & Franklyn [2019] FamCAFC 256
Goode & Goode [2006] FamCA 134
Marvel & Marvel [2010] FamCAFC 101
Morgan & Miles [2007] FamCA 1230, (2007) FLC 93-343, (2007) 38 Fam LR 275
Oswald & Karrington [2016] FamCAFC 152
Parks & Farmer [2012] FamCAFC 12
Division: Division 2 Family Law Number of paragraphs: 83 Date of hearing: 27 October 2023 Place: Melbourne Counsel for the Applicant: Ms Skinner Solicitor for the Applicant: TBA Law Counsel for the Respondent: Ms Damon Solicitor for the Respondent: Pear and Pair Law ORDERS
MLC 9663 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR EVERHARDT
Applicant
AND: MS ALGERON
Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The Mother be permitted to relocate to a location no further than 120 kilometres from Suburb B, Victoria.
2.The children X born in 2017 and Y born in 2019, collectively the children (“the children”) live with the Mother.
3.The children spend time with the Father as follows:
(a)From 5.00pm Friday until before school Monday each alternate week commencing Friday 29 September 2023 and such time to be suspended during school holiday periods with before school changeover occurring at the children’s school and/or daycare;
(i)Where time as specified in order 3(a) occurs on a weekend which has a gazetted public holiday adjacent to the weekend day the following occur:
A.Where the Friday is a gazetted public holiday from 5.00pm Thursday until before school Monday; and
B.Where the Monday is a gazetted public holiday from 5.00pm Friday until before school Tuesday.
(b)For the Autumn, Winter and Spring short school holidays:
(i)In 2023 and each alternate year there from 5.00pm on the second Saturday of the school holidays until 5.00pm on the last Saturday of the holidays; and
(ii)In 2024 and each alternate year there from 5.00pm on the first Saturday of the school holidays until 5.00pm on the second Saturday of the holidays.
(c)In the Long Summer holidays as follows:
(i)As agreed between the parents to be times that equate to half of the long school holidays.
(d)At all other times as agreed in writing between the parents.
4.The children communicate with the Father via Facetime as follows:
(a)Each Tuesday and Thursday at 5.30pm for a period not exceeding thirty minutes;
(b)At reasonable times as requested by the children; and
(c)At all other times as agreed between the parents.
5.Both parents are…
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CaseChat Overview and Summary
The court was required to decide whether the mother should be ordered to relocate back to the local area and, if so, the extent of this relocation. Additionally, the court had to determine the interim parenting arrangements, including the frequency and nature of the children’s time with the father and the father's communication with the children.
The court found that the mother should be permitted to relocate to a location no further than 120 kilometres from Suburb B, Victoria, acknowledging the mother's intention to move for employment and educational opportunities. The court established detailed interim parenting arrangements that prioritised the children’s welfare and facilitated their relationship with both parents. This included specified visitation times, communication via Facetime, and provisions for special occasions and holidays. Both parents were restrained from engaging in certain behaviours, such as consuming illicit drugs or alcohol, and exposing the children to criminal activities. The court also mandated hair drug and alcohol testing for both parents to ensure a safe environment for the children.
The court's orders reflect a balanced approach to interim parenting, aiming to maintain the children's connection with both parents while addressing the father's concerns about the relocation and the mother's allegations of risk.
Orders
Orders of the court
MLC 9663 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR EVERHARDT
Applicant
AND:
MS ALGERON
Respondent
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
2 NOVEMBER 2023
THE COURT ORDERS THAT:
1. The Mother be permitted to relocate to a location no further than 120 kilometres from Suburb B, Victoria.
2. The children X born in 2017 and Y born in 2019, collectively the children (“the children”) live with the Mother.
3. The children spend time with the Father as follows:
(a) From 5.00pm Friday until before school Monday each alternate week commencing Friday 29 September 2023 and such time to be suspended during school holiday periods with before school changeover occurring at the children’s school and/or daycare;
(i) Where time as specified in order 3(a) occurs on a weekend which has a gazetted public holiday adjacent to the weekend day the following occur:
A. Where the Friday is a gazetted public holiday from 5.00pm Thursday until before school Monday; and
B. Where the Monday is a gazetted public holiday from 5.00pm Friday until before school Tuesday.
(b) For the Autumn, Winter and Spring short school holidays:
(i) In 2023 and each alternate year there from 5.00pm on the second Saturday of the school holidays until 5.00pm on the last Saturday of the holidays; and
(ii) In 2024 and each alternate year there from 5.00pm on the first Saturday of the school holidays until 5.00pm on the second Saturday of the holidays.
(c) In the Long Summer holidays as follows:
(i) As agreed between the parents to be times that equate to half of the long school holidays.
(d) At all other times as agreed in writing between the parents.
4. The children communicate with the Father via Facetime as follows:
(a) Each Tuesday and Thursday at 5.30pm for a period not exceeding thirty minutes;
(b) At reasonable times as requested by the children; and
(c) At all other times as agreed between the parents.
5. Both parents are restrained from deleting the Facetime App from the children’s devices.
6. Notwithstanding the preceding orders, the children spend time with each of the parents on special occasions as follows.
(a) For Birthdays each year the parent who does not have the children already in their care pursuant to the preceding orders shall spend time with the children as follows:
(i) On a week day:
A. From afterschool or 3.30pm on a non school day until 7.00pm;
(ii) On a weekend:
A. From 3.00pm until 7.00pm.
7. For the purpose of 6(a) above special occasions refers to the birthdays of the parents and the children.
8. The children spend time with each of the parents for Christmas:
(a) With the Father from 3.00pm Christmas Eve until 3.00pm Christmas Day in 2023 and alternating each year thereafter.
(b) With the Mother from 3.00pm Christmas Day until 3.00pm Boxing Day in 2023 and alternating each year thereafter.
9. Each party shall notify the other with no less than seven days prior written notice of any change of residential address, telephone numbers, email addresses or other contact details.
10. With respect to educational matters each of the parents by virtue of these Orders:
(a) be permitted to attend all school and childcare functions and events to which parents are normally invited including but not limited to concerts, sports carnivals, parent teacher interviews and any other similar occasion.
(b) to receive copies of all documents normally provided to parents including but not limited to newsletters, photographs, school reports and any other similar document.
(c) to discuss the children with their educators at any time.
(d) each parent be permitted to attend all extracurricular events and functions relevant to the children and each parent keep the other advised as to such events and provide no less than 72 hours notice thereof.
11. In relation to medical and health matters by virtue of these Orders each of the parents are at liberty to and are required to:
(a) keep the other advised at all times of any medical or health condition affecting the children or either of them.
(b) be permitted to attend any medical appointment in relation to the children and keep the other parent advised as to the same.
(c) ensure that each parent has copies of all prescriptions and medical information relevant to the children so as to ensure the children can receive any treatment reasonably and directed for them.
(d) each parent keep the other advised as to any medical health issue concerning the children and authorise the other to liaise with and speak with the children's treating practitioners about the same.
12. Each of the parents be permitted to receive copies of all medical and allied health documents relevant to either of the children.
13. Each parent immediately notify the other in the event that either child suffers a serious illness or injury whilst in their respective care.
14. Without admitting the necessity of same, the parents be restrained by injunction from consuming, using, or being under the influence of any illicit drug or substance or drinking alcohol to excess whilst either of the children are in their care and for 24 hours prior thereto.
15. The parents and their agents are prohibited from:
(a) exposing the child to family violence or any criminal activity;
(b) exposing the child to any person under the influence of illicit drugs or alcohol;
(c) posting information as to the other parent, the parenting dispute or allegations raised herein on any social media or allowing any other person to do so;
(d) denigrating the other parent or any members of their family to the child or in the presence of the child.
16. The parents communicate using the parenting application AppClose.
17. All changeovers which do not occur at the children’s school or daycare occur at the McDonald Restaurant located at C Street, Suburb D.
THE COURT ORDERS BY CONSENT THAT:
18. Both the Mother and the Father’s existing hair samples provided at a hair drug and alcohol testing purposes pursuant to the orders dated 27 September 2023 be re-tested by way of a Drugs of Abuse Test for the purpose of testing for illicit drugs and alcohol.
19. In the event that the parent’s previous samples cannot be re-tested in accordance with order 18 herein, within 14 days of the date of these orders, the Mother and Father make appointments and attend for hair collection at an Australian Workplace Drug Testing Services (‘AWDTS’) clinic or nominee for hair drug and alcohol testing purposes for a Drugs of Abuse Test. Collection is to be conducted by a qualified and certified collector. Chain-of-custody procedure is to be applied to the sample. Testing is to be conducted at an approved laboratory, accredited to conduct hair drug testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant national accreditation body for that laboratory. Either head or body hair may be collected for testing. To give effect to this order:
(a) The Mother and Father are required to maintain their head hair at a length of not less than four (4) centimetres; neither head hair nor body hair is to be cut, bleached or dyed between the date of this order and the time of collection of hair;
(b) Within seventy-two (72) hours of the date of these orders, the Mother and Father are required to make an appointment with AWDTS by telephoning … for the purpose of providing a hair sample for hair drug and alcohol testing purposes;
(c) Each party and their legal representatives is at liberty to provide AWDTS with a copy of these orders;
(d) The Mother and Father are to attend at an AWDTS Clinic or nominee and submit to the supervised collection of a hair sample from the Mother and Father at the earliest available appointment time within seven (7) days of receiving written notice to undertake hair collection for hair drug and alcohol testing purposes from the other party or their legal representatives;
(e) Written notice to undertake hair collection for hair drug and alcohol testing purposes may be sent to the each party care of their solicitor’s email address and shall be deemed to have been received by the party at the date and time it is sent via email.
(f) The Mother and Father are to provide the collector with photographic identification to be recorded before each hair collection and a copy of these Orders.
(g) The hair drug and alcohol test may screen for alcohol, eTG and prescription and non-prescription drugs of abuse including illicit drugs, cannabis and metabolites;
(h) AWDTS is required to utilise the testing services of an appropriate laboratory accredited to conduct hair drug and alcohol testing to the recognised International Standard ISO/IEC 17025:2005 by the relevant National Accreditation body; AWDTS’ selection is to be based on the type of test required, the specific drug or drugs to be tested, the laboratory’s compliance level with the International Society of Hair Testing (SOHT) guidelines, costs and time required for results to be made available; and
(i) All costs associated with any hair drug and alcohol testing shall be met by the Father.
(j) These Orders hereby authorise AWDTS (or nominee) to provide the results of each test directly to both parents (and any legal representative of the parents or either of them) and any Independent Children’s Lawyer or Family Report Writer.
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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