Fort & Fort (No 2) - [2025] FedCFamC1F 175

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fort & Fort (No 2) [2025] FedCFamC1F 175

File number(s): ADC 2560 of 2023

Judgment of: KARI J

Date of judgment: 19 March 2025

Catchwords: FAMILY LAW – CHILDREN – School holidays – Where the father seeks specific periods of block time during school holidays to travel interstate with the children – Where the mother opposes the father’s application – Where there are already suitably protective measures in place to ameliorate risk – Where the mother has agreed to interstate travel and block time spending in the past – Where the father is permitted to travel interstate with the children – Where the paternal grandmother is to supervise the children’s time during such travel

Cases cited: Fort & Fort [2025] FedCFamC1F 126

Division: Division 1 First Instance

Number of paragraphs: 37

Date of hearing: 14 March 2025

Place: Adelaide

Counsel for the Applicant: Mr Robertson-Clark SC, assisted by Ms Miller

Solicitor for the Applicant: Norman Waterhouse Lawyers

Counsel for the Respondent: Mr Williams SC, assisted by Mr Dillon

Solicitor for the Respondent: Precision Legal
ORDERS

ADC 2560 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FORT

Applicant

AND:
MR FORT

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

19 MARCH 2025

THE COURT ORDERS THAT:
1.The children X and Y both born 2013 (“the children”) spend time with the father during the short school holidays at the end of terms 1, 2 and 3 in 2025 as follows:
(a)For the purposes of a holiday to Sydney, commencing 3:00 pm on 11 April 2025 and concluding at 6:00 pm on 19 April 2025;
(b)For the purposes of a holiday to Town V in Queensland, commencing 3:00 pm on 4 July 2025 and concluding at 6:00 pm on 12 July 2025; and
(c)For the purposes of a holiday to Town W in Queensland, commencing 3:00 pm on 26 September 2025 and concluding at 6:00 pm on 4 October 2025.

2.The children live with the mother at all other times during the school holidays at the end of terms 1, 2 and 3 in 2025.
3.The father’s time with the children provided for in Order 1 herein, be supervised by the paternal grandmother.
4.In the event that the father does not travel interstate with the children as provided in Order 1 herein, the children shall spend time with the father in accordance with the regular regime of time spending pursuant to Order 2(a) of the orders made 3 November 2023.
5.In the event that the mother wishes to travel to any of the holiday locations identified in Order 1 herein, the father’s time spending shall conclude and handover shall take place in each location as follows:
(a)In Sydney at a location to be agreed in writing at 12 noon on 19 April 2025;
(b)In Town V in Queensland at a location to be agreed in writing on 12 July 2025; and
(c)In Town W in Queensland at a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fort & Fort (No 2)

Details

AGLC: Fort & Fort (No 2) [2025] FedCFamC1F 175
Case: [2025] FedCFamC1F 175
Decision Date: 19 March 2025

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia (Division 1) heard a case between Mr Fort and Ms Fort regarding the children's school holiday arrangements. The father sought specific periods of block time during the school holidays to travel interstate with the children, while the mother opposed this application. The court had to decide whether the father should be allowed to spend block time with the children during school holidays and, if so, under what conditions. The court considered the existing protective measures in place, the mother's past agreement to interstate travel and block time spending, and the father's right to travel interstate with the children.

The court reasoned that, given the existing protective measures, the mother's past agreement to interstate travel, and the father's right to travel interstate with the children, it was appropriate to allow the father to spend block time with the children during the short school holidays at the end of terms 1, 2, and 3 in 2025. The court also considered the supervision of the father's time spending by the paternal grandmother and the need for the father to undergo alcohol breath testing during the school holidays. The court concluded that the proposed arrangements would be in the best interests of the children.

The court made orders permitting the father to spend block time with the children for the purposes of an interstate holiday at the end of terms 1, 2, and 3 in the 2025 year. The children were to live with the mother at all other times during the school holidays. The father's time with the children was to be supervised by the paternal grandmother, and in the event that the father did not travel interstate with the children, they were to spend time with him in accordance with the regular regime of time spending. The court also provided for the handover of the children in the event that the mother wished to travel to any of the holiday locations. All extant interlocutory parenting proceedings were dismissed.

Orders

Orders of the court

ADC 2560 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FORT

Applicant

AND:

MR FORT

Respondent

ORDER MADE BY:

KARI J

DATE OF ORDER:

19 MARCH 2025

THE COURT ORDERS THAT:

1. The children X and Y both born 2013 (“the children”) spend time with the father during the short school holidays at the end of terms 1, 2 and 3 in 2025 as follows:

(a) For the purposes of a holiday to Sydney, commencing 3:00 pm on 11 April 2025 and concluding at 6:00 pm on 19 April 2025;

(b) For the purposes of a holiday to Town V in Queensland, commencing 3:00 pm on 4 July 2025 and concluding at 6:00 pm on 12 July 2025; and

(c) For the purposes of a holiday to Town W in Queensland, commencing 3:00 pm on 26 September 2025 and concluding at 6:00 pm on 4 October 2025.

2. The children live with the mother at all other times during the school holidays at the end of terms 1, 2 and 3 in 2025.

3. The father’s time with the children provided for in Order 1 herein, be supervised by the paternal grandmother.

4. In the event that the father does not travel interstate with the children as provided in Order 1 herein, the children shall spend time with the father in accordance with the regular regime of time spending pursuant to Order 2(a) of the orders made 3 November 2023.

5. In the event that the mother wishes to travel to any of the holiday locations identified in Order 1 herein, the father’s time spending shall conclude and handover shall take place in each location as follows:

(a) In Sydney at a location to be agreed in writing at 12 noon on 19 April 2025;

(b) In Town V in Queensland at a location to be agreed in writing on 12 July 2025; and

6. That all extant interlocutory parenting proceedings be dismissed.

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

For the reasons that follow, orders shall be made permitting the father to spend block time with the children for the purposes of an interstate holiday at the end of terms 1, 2 and 3 in the 2025 year.BACKGROUND These reasons should be read together with the reasons and orders made 19 February 2025. I accordingly do not propose to set out any detailed background to the proceedings, the dispute, nor discussion of the applicable legal principles. Importantly, the orders made on 19 February 2025 did not change the time spending arrangement between the children and the father that have been place for some time. The relevant orders provide for:(a)The children to live with the mother – Order 1 made by consent on 3 November 2023;(b)The children to spend time with the father for five nights each fortnight during school terms in a fortnightly rotating arrangement which sees the children spending time with the father in each alternate week from the conclusion of school Friday (or 3:00 pm if a non-school day) until the commencement of school Monday (or 9:00 am if a non-school day), and in each intervening week from the conclusion of school Tuesday (or 3:00 pm if a non-school day) until the commencement of school Wednesday (or 9:00 am if a non-school day) – Order 2(a) made by consent on 3 November 2023.(c)In relation to school holiday time spending:(i)Orders were made on 3 November 2023 by a senior judicial registrar which essentially imposed a week-about time spending arrangement for the children across the school holiday periods (Orders 18 and 19);(ii)The mother filed a review application regarding the judicially determined orders and a review hearing took place on 22 December 2023. Whilst somewhat confusing, no order was made at the review hearing on 22 December 2023 specifically discharging Orders 18 and 19 made 3 November 2023. Instead, an order was made discharging the orders of 3 November 2023 “to the extent necessary to give effect to the orders made today” (Order 2). (iii)It appears uncontentious that the orders made 22 December 2023 had the effect of discharging Orders 18 and 19 made 3 November 2023 because specific orders were made on 3 November 2023 for the long Christmas school holidays at the end of the 2023 year. (iv)As such, no orders for school holiday time spending were in place beyond those ordered by the Court on 3 November 2023.(v)Orders were made by consent on 18 December 2024 regarding the arrangements for the long Christmas school holidays at the end of the 2024 year. The orders made 19 February 2025, are of significance for present purposes, as they:(a)Did not specifically deal with school holiday time spending.(b)Included orders which were made by consent between the parties which provided for:(i)A regime to facilitate the suspension of the father’s time spending with the children (as applies during the school term) to apply during school holiday periods in certain circumstances in accordance with Order 7 made by consent on 3 November 2023 as follows (per Order 2):Suspension of the husband’s time and supervised time7.The husband’s time with the children pursuant to paragraph 2(a) of these Orders will forthwith be suspended upon the following and stand suspended until further order:(a)the husband registers a positive blood alcohol concentration reading following testing pursuant to paragraphs 4(a) to 4(c);(b)fails to submit to a breathalyser test pursuant to paragraph 4(a) to 4(c);(c)fails to provide his breath alcohol analysis device upon request of the wife pursuant to paragraphs 5(f);(d)fails to provide a copy of the recalibration report from the Ignition Interlock Device within 24 hours of receipt pursuant to paragraph 6(b);(e)the husband registers a positive blood alcohol concentration reading from data produced from the breath analysis device or Ignition Interlock Device for a period that the children are in his care or within twenty-four (24) hours prior.(ii)The supervision of the father’s time spending with the children by either his mother or sister during school holidays in the event that the father travels “further than 100 kms away from the Adelaide CBD” (Order 4).(iii)Alcohol breath testing of the father during the school holidays on one occasion during the school holiday time spending period on the mother giving 30 minutes notice by text message, and at 9.00 pm prior to the commencement of time (Order 5).THE COMPETING POSITIONS OF THE PARTIES

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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File number(s):	ADC 2560 of 2023
Judgment of:	KARI J
Date of judgment:	19 March 2025
Catchwords:	FAMILY LAW – CHILDREN – School holidays – Where the father seeks specific periods of block time during school holidays to travel interstate with the children – Where the mother opposes the father’s application – Where there are already suitably protective measures in place to ameliorate risk – Where the mother has agreed to interstate travel and block time spending in the past – Where the father is permitted to travel interstate with the children – Where the paternal grandmother is to supervise the children’s time during such travel
Cases cited:	Fort & Fort [2025] FedCFamC1F 126
Division:	Division 1 First Instance
Number of paragraphs:	37
Date of hearing:	14 March 2025
Place:	Adelaide
Counsel for the Applicant:	Mr Robertson-Clark SC, assisted by Ms Miller
Solicitor for the Applicant:	Norman Waterhouse Lawyers
Counsel for the Respondent:	Mr Williams SC, assisted by Mr Dillon
Solicitor for the Respondent:	Precision Legal

ADC 2560 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FORT Applicant
AND:	MR FORT Respondent

ORDER MADE BY:	KARI J
DATE OF ORDER:	19 MARCH 2025