FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Goodwin & Kester [2022] FedCFamC2F 743
File number(s): MLC 7653 of 2021 Judgment of: JUDGE BURT Date of judgment: 8 June 2022 Catchwords: FAMILY LAW – Parenting – interstate relocation – young children – finely balanced case Legislation: Criminal Code Act 1995 (Vic) ss 134.2, 136.1, 135.2
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Cases cited: Masson v Parsons (2019) 266 CLR 55
Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 520
McCall & Clark (2009) 41 Fam LR 483; (2009) FLC 93-405; [2009] FamCAFC 92
MRR v GR [2010] 240 CLR 461; (2010) 263 ALR 368; (2010 84 ALJR 220; (2010 42 Fam LR 531; (2010) FLC 93-424; [2010] HCA 4
Re Andrews (1996) 132 FLR 118; (1996) 20 Fam LR 538; (1996) FLC 92-692
Taylor & Barker (2007) 214 FLR 433; (2007) 37 Fam LR 461; (2007) FLC 93-345; [2007] FamCA 1246
Division: Division 2 Family Law Number of paragraphs: 112 Date of hearing: 9, 10 and 11 May 2022 Place: Melbourne Counsel for the Applicant: Mr Gates Solicitor for the Applicant: Dinning & Co Counsel for the Respondent: Ms Miller Solicitor for the Respondent: P Law Firm ORDERS
MLC7653 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR GOODWIN
Applicant
AND: MS KESTER
Respondent
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
8 JUNE 2022
THE COURT ORDERS THAT:
1.The parties have equal shared parental responsibility for the children of the relationship, namely X, born in 2017 and Y, born in 2019 (“the children”).
2.The mother’s application for permission to relocate the residence of the children to the Town B region of South Australia be dismissed.
3.In the event that the mother resides within 80 kilometres by road from C School, Town C, NSW, the children shall live with the mother and the father in alternate weeks, with changeover taking place at 3.30 pm (or the end of the school day if the children or either of them are attending kinder or school) each Friday.
4.In the event that the mother does not reside within 80 kilometres by road from C School, Town C, NSW:
(a)the children live with the father;
(b)the children spend time and communicate with the mother:
(i)during the NSW gazetted school terms on alternate weekends as follows:
A.for weekend 1 of a 4-week cycle in Town B from 5.30pm (SA Time) on Friday until 3.30pm (SA Time) on Sunday with changeover to occur at Town D McDonalds, SA; and
B.for weekend 2 of a 4-week cycle in Region H with the mother to travel to collect the children from the father’s residence (or at a place otherwise agreed) from after school on Friday until 6pm on Sunday;
(ii)during the first half of each NSW gazetted school term holiday with changeover to occur at Town D McDonalds, SA; and
(iii)for the long summer vacation period…
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- AGLC
- Goodwin v Kester [[2022]] FedCFamC2F 743
- Case
- [2022] FedCFamC2F 743
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether Ms Kester should be permitted to relocate the children to South Australia, and if so, what contact arrangements should be put in place between the children and their non-resident parent. The court had to consider the best interests of the children, which included their need for stability, their relationship with each parent, and the potential impact of relocation on their education and well-being.
Judge Burt determined that while the relocation application was not in the children's best interests, it was appropriate to order equal shared parental responsibility. The court dismissed the relocation application and instead set out detailed time-sharing arrangements, which provided for the children to spend time with both parents on a regular basis. The orders also included provisions for communication between the children and their non-resident parent, as well as various other miscellaneous orders to ensure the children's welfare and to protect them from exposure to parental conflict.
The court's orders ensured that the children would maintain a close relationship with both parents, despite the relocation not being in their best interests. The detailed time-sharing arrangements were designed to provide the children with stability and continuity in their lives, while also allowing them to maintain a connection with their non-resident parent. The court also emphasised the importance of protecting the children from exposure to parental conflict and ensuring their welfare was prioritised in all decisions made regarding their care.
Orders
Orders of the court
MLC7653 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR GOODWIN
Applicant
AND:
MS KESTER
Respondent
ORDER MADE BY:
JUDGE BURT
DATE OF ORDER:
8 JUNE 2022
THE COURT ORDERS THAT:
1. The parties have equal shared parental responsibility for the children of the relationship, namely X, born in 2017 and Y, born in 2019 (“the children”).
2. The mother’s application for permission to relocate the residence of the children to the Town B region of South Australia be dismissed.
3. In the event that the mother resides within 80 kilometres by road from C School, Town C, NSW, the children shall live with the mother and the father in alternate weeks, with changeover taking place at 3.30 pm (or the end of the school day if the children or either of them are attending kinder or school) each Friday.
4. In the event that the mother does not reside within 80 kilometres by road from C School, Town C, NSW:
(a) the children live with the father;
(b) the children spend time and communicate with the mother:
(i) during the NSW gazetted school terms on alternate weekends as follows:
A. for weekend 1 of a 4-week cycle in Town B from 5.30pm (SA Time) on Friday until 3.30pm (SA Time) on Sunday with changeover to occur at Town D McDonalds, SA; and
B. for weekend 2 of a 4-week cycle in Region H with the mother to travel to collect the children from the father’s residence (or at a place otherwise agreed) from after school on Friday until 6pm on Sunday;
(ii) during the first half of each NSW gazetted school term holiday with changeover to occur at Town D McDonalds, SA; and
(iii) for the long summer vacation period on a week about basis commencing on the second Saturday after Boxing Day at 12 noon and each alternate week thereafter.
5. The children shall spend time with the parents for Christmas as agreed between the parents and in default of agreement as follows:
(a) in each even-numbered year with the mother from 12 noon Christmas Eve until 12 noon on Boxing Day; and
(b) in each odd-numbered year with the father from 12 noon on Christmas Eve until 12 noon on Boxing Day in each even year commencing 2024.
6. In the event that the children are not in the father’s care they shall spend time with him from 4pm on the Saturday prior to Father’s Day until 4pm on Father’s Day.
7. In the event that the children are not in the mother’s care they shall spend time with her from 4pm on the Saturday prior to Mother’s Day until 4pm on Mother’s Day.
8. The children speak to the parties by way of telephone or FaceTime at all reasonable times with the parent whose care the children are in to facilitate the call upon the children’s request.
Miscellaneous Orders
9. The parties each:
(a) keep the other advised at all times of their respective residential addresses, telephone contact number (s) and email addresses;
(b) advise the other immediately in the event that the children or either of the children suffers any serious illness or injury or is taken to hospital for any consultation or treatment and both parties be permitted to attend at the relevant hospital with the child or children during the period of such hospitalisation whether or not the child is admitted as an inpatient;
(c) keep the other advised of the names, addresses and telephone numbers of any treating medical practitioners, counsellors, therapists or other health care professionals for the child/children and both parties be permitted to attend upon and receive information from such medical practitioner at that parent's own cost; and
(d) keep each other advised of any extracurricular activities the children are involved in from time to time.
10. These Orders operate as an authority for any educational facility/school attended by the children, to provide copies of all reports, notices and invitations to all events to which parents are usually invited to attend, including sports days, concerts, social events and parent teacher interviews and the parties both be at liberty to attend all such events.
11. Both parties shall facilitate the children’s attendance, at any schooling functions or extra-curricular activities when such events fall during that parties’ time with the children provided that that party has been consulted and has consented to the child’s ongoing involvement in such extra-curricular activity.
12. The parties, their servants and agents be and are hereby restrained by way of injunction from:
(a) denigrating, abusing, insulting or belittling the other parent or any member of that parent’s family or household in the presence or hearing of the children or on any social media networks or other electronic communications;
(b) discussing these proceedings with the children; or
(c) exposing the children or either of the children to conflict or disagreements between the mother and the father or between any person in their respective households; and shall use their best endeavours to ensure that others do not do so.
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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