Fort & Fort (No 2)
[2025] FedCFamC1F 175
•19 March 2025
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 location to be agreed in writing on 4 October 2025.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fort & Fort has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KARI J:
INTORODUCTION
These are interlocutory parenting proceedings which have the specific focus on arrangements for the children’s time spending with the father in the short school holidays at the end of terms 1, 2 and 3 in 2025.
The children the subject of the proceedings are twins, X and Y born in 2013.
The present dispute arose in the context of interlocutory parenting proceedings which were heard by the Court, with ex tempore reasons delivered at the conclusion of the hearing on 19 February 2025 (Fort & Fort [2025] FedCFamC1F 126).
The hearing on 19 February 2025 took place across two sittings, one in the morning and one in the afternoon. The ex tempore reasons were delivered and orders were made with the Court rising just after 6.30 pm. Following the delivery of reasons, senior counsel for the father agitated specific time spending between the father and the children in the short school holidays in 2025 to enable the father to take the children interstate for a holiday at the end of each terms 1, 2 and 3.
Given the late hour of the day, and where the parties were unable to reach agreement about these arrangements, an order was made adjourning consideration of this issue to a separate hearing on 14 March 2025 that had already been listed earlier in the hearing to deal with interlocutory issues of a procedural nature to progress the financial proceedings.
At the hearing on 14 March 2025, the parties were advised that the proceedings were likely to be given a final hearing in the second half of the year. The parties were asked to consider this factor in relation to the interlocutory financial dispute. Those issues were therefore not dealt with at the hearing on 14 March 2025, and instead the only issue the subject of argument to which these reasons relate is the father’s time spending with the children across the short school holidays in 2025.
It is some concern to the Court that the parties incurred legal fees for both senior and junior counsel and their instructing solicitors, together with an unnecessary amount of Court time to the issue of school holiday time spending for all of the reasons that follow; but particularly given the children have been able to spend time interstate with the father by agreement in the years since separation. That an agreement about school holiday time spending could not again be brokered between the parties is regrettable, and the Court hopes that this is not a sign that the parties have become entrenched and lacking in perspective.
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 time
7.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
The father asks the Court to make orders to enable him to spend block time with the children over the 2025 school holidays as follows:
(a)At the end of term 1, from the conclusion of school Friday 11 April 2025 (being the last day of term), until 6:00 pm on Sunday 19 April 2025, and with the mother for the balance of the term 1 school holidays;
(b)At the end of term 2, from the conclusion of school Friday 4 July 2025 (being the last day of term), until 6:00 pm on Saturday 12 July 2025, and with the mother for the balance of the term 2 school holidays; and
(c)At the end of term 3, from the conclusion of school Friday 26 September 2025 (being the last day of term), until 6:00 pm on Saturday 4 October 2025, and with the mother for the balance of the term 3 school holidays.
With regard to paragraph 47 of the father’s affidavit filed 14 February 2025, together with exhibit “IH-H2” received during the hearing, it is apparent that the purpose of the father’s proposed block time spending is to facilitate him taking the children on interstate holidays as follows:
(a)In April to Sydney, with air travel booked on 14 April 2025, returning on 19 April 2025 - with the father asserting he has booked accommodation at a hotel in Sydney;
(b)In July to Town V in Queensland, with air travel booked in and out of City S on 6 July 2025, returning on 12 July 2025– with the father asserting that he has booked accommodation at a hotel in Town V; and
(c)In September/October to Town W in Queensland, with air travel booked in and out of Region T airport on 27 September 2025, returning on 4 October 2025 - with the father asserting that he has booked accommodation at a hotel in Region T.
The mother opposes the father’s application so far as it relates to the block time spending and travel arrangements at the end of terms 1 and 3. She contends:
(a)The Court has heard and determined that there be no changes to the father’s time spending, and specifically that no orders have been made for block time spending. As such, she contends that the regime of time spending in during term time ought also apply to the school holidays;
(b)She wishes to travel to Town W in Queensland with the children during the October school holidays; and
(c)The children would benefit from down-time at home in Adelaide during the school holidays, and the father’s proposal would see the children travelling every school holidays.
In relation to the July school holiday period in which the father proposes to take the children to Town V in Queensland, the mother consents to the father’s proposed travel on the basis that:
(a)The paternal grandmother be present; and
(b)The children live with her for the balance of the time in the school holidays.
DISCUSSION
These children are in the fortunate position of having two parents who are willing and financially able to facilitate them enjoying regular interstate travel.
As indicated during the course of the hearing (and with neither party objecting), I consider that I am able to take judicial notice of the fact that children generally benefit from being able to travel and holiday with their parents.
The mother’s opposition to the proposed travel appears to come from what she considers to be the father’s subterfuge in making unilateral travel plans, which she asserts forces both her hand and that of the Court into acceding to the arrangements that he has made.
The mother’s view about the father’s pre-emptive travel bookings, without the permission of the Court and in the face of there being no orders for block time spending appears to be warranted; particularly in circumstances where with reference to exhibit “IH-H2”, it appears that the father made the flight bookings just prior to swearing his affidavit filed 14 February 2025, but did not depose any details about the same in that affidavit.
In contrast, however, it appears to be an agreed fact between the parties that despite there previously having been no agreement or orders for block time spending between the children and the father during school holidays, the mother has agreed to such time occurring on at least the following occasions:
(a)In April 2023, for a four day trip to Sydney; and
(b)In September 2024, for a five night trip to Tasmania.
Whilst the mother does not comment upon it in her affidavit filed 28 February 2025, the father also contends the mother has agreed to block time spending between he and the children on additional previous occasions, including:
(a)Five nights in Perth in April 2022;
(b)Six nights in October 2022; and
(c)Five, six and seven nights throughout the December 2022 and January 2023 school holidays, part of which the father travelled to a family beach house in Town U with the children.
It is the mother’s position that she acceded to these arrangements previously as the father had unilaterally made the arrangements, and informed the children of them, and she did not want to disappoint them.
These matters combined act to confirm the preliminary views I expressed in my reasons delivered 19 February 2025, that there is a distinct lack of trust between these parties.
This aside, however, the focus of the Court is not on punishing nor rewarding parents for bad or good behaviour. Instead, the focus of the Court is on making orders that are in the children’s best interests.
Whatever the case may be, the reality is that the mother has previously agreed to travel arrangements for the children to spend time with the father, and it is hardly surprising that the father assumed that such good will might continue to exist between the parties for the benefit of the children. This is particularly so, in the absence of evidence which suggests the children have suffered harm or been negatively impacted during any of the previous travel with the father.
The reasons of 19 February 2025 set out the concerns held by the mother and the Court as to the risk factors for these children associated with exposure to the father’s alcohol use and alleged abuse. The risks include not only their physical safety, but also their psychological and emotional wellbeing.
The question, however, for present purposes is whether protective measures are available to ameliorate the risk of harm the children would be exposed to if the father was to become affected by alcohol during the proposed travel.
The parties have agreed, and orders have been made imposing a range of protective measures as earlier identified at [11] herein. It is the father’s case that the paternal grandmother shall be accompanying him and the children for all of the proposed travel.
In addition to these orders, the earlier orders as to regular breath alcohol analysis made by consent between the parties on 3 November 2023 (Orders 4-5) remains in place, and the Court has maintained the use of an interlock device as provided in Order 6 made 3 November 2023.
When combined, I consider these orders are suitably protective of the children and they do not place the children at an unacceptable risk of harm for short periods of block time spending to facilitate an interstate holiday.
Moreover, where the mother herself has, in the past and ongoing (as evidenced by the consent to Order 4 made 19 February 2025 and the July 2025 proposed travel), considered supervision of the father’s block time-spending by his mother (or sister), together with a specific regime for alcohol breath testing (Order 5 made 3 November 2023 and Order 5 made 19 February 2025) to be suitably protective, it is difficult to discern why it is that the mother is now oppositional.
I have considered whether additional protective measures are required (for example an injunction preventing the father from driving with the children while interstate, such that all driving be undertaken either by the paternal grandmother or a private driver of some sort), however in circumstances where the mother herself has not proposed this or any other arrangement, I do not consider the same to be necessary.
While it is understood that during the hearing the mother (through her senior counsel) contended that the children need “rest time” at home during the school holidays, together with “rest and recuperation in the company of their mother”, two things might be said:
(a)Firstly, there is no expert evidence which supports this contention of the mother.
(b)Secondly, rest, recuperation and down time can take many forms. Arguably, a holiday falls within the description of rest, recuperation and down time.
For all of these reasons I propose to make orders to facilitate the children travelling interstate with the father for holidays at the conclusion of terms 1, 2 and 3 in 2025, with such time to specifically be supervised by the paternal grandmother.
During the course of the hearing, the mother also indicated through her senior counsel that she wishes to take the children to Destination 2 in Queensland in the school holidays at the conclusion of term 3. The orders I propose to make do not prevent the mother from doing so. I shall make orders which facilitate the mother collecting the children earlier, in the event that she chooses to travel and holiday in any of the locations that the father shall be holidaying with the children.
Having made these orders, the father should be on notice that should he again make unilateral arrangements for block time spending, and travel outside South Australia without the consent of the mother or the Court, a very different view may well be taken by the Court; particularly as it would suggest that the father has a disregard for the authority of the Court and the impact on the mother and her role in parenting the children. It would be far better for the parties to negotiate these arrangements without incurring the costs of having the topic judicially determined.
For all of these reasons I make those orders that appear at the commencement of these reasons.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Kari. Associate:
Dated: 19 March 2025