Herbert & Oliver

MLC 4522 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS HERBERT

Applicant

AND:

MR OLIVER

Respondent

ORDER MADE BY:

JUDGE CHAMPION

DATE OF ORDER:

14 JULY 2023

THE COURT ORDERS THAT:

1. The Mother and Father have equal shared parental responsibility for the child, X, born in 2019 (X).

Live with and spend time with arrangements

2. From the date of these orders until 7 October 2024 (the start of Term 4 in the Victorian 2024 school year in anticipation of X commencing school in 2025) X live with each of the Mother and the Father on a “fortnight about” basis.

3. From 7 October 2024 X live with the Mother.

4. From 7 October 2024 (subject to order 8) X spend time with the Father as follows:

(a) during the school term, every third weekend in a three weekly cycle commencing at 6:00 pm Friday and until 6:00 pm Sunday;

(b) in addition to time spent under order 4(a) during the school term, at the Father’s option in any given calendar month an additional weekend commencing at 6:00pm Friday and until 6:00 pm Sunday (or 6:00 pm Monday in the event that Monday is not a school day) provided that the Father:

(i) give notice in writing to the Mother not later than 6:00 pm on the Wednesday prior to that weekend of an intention that X spend time with him in accordance with this order; and

(ii) such time occur in Town C or at a place not more than two hours car travel from Town C; and

(iii) changeover occur at the Mother’s residence;

(c) during the term school holidays for all of term 1, term 2 and term 3 school holidays commencing at 12:00 pm on the first Saturday of such holidays until 12:00 pm on the last Saturday of such holidays;

(d) during the Christmas school holidays as agreed and in default of agreement:

(i) in 2024 and each even numbered year thereafter, for the first half commencing in December 2024 on the last day of the school year (20 December 2024) until the day that falls at the middle of the Christmas school holidays;

(ii) in 2025 and each odd numbered year thereafter, for the second half commencing on the day that falls at the middle of the Christmas school holiday period until the day that falls two days prior to the first day of the new year school term.

Communication

5. The parties shall communicate with respect to issues concerning their parenting arrangements until X is of the age of 18 and/or finishes high school.

6. At all times when X is not otherwise in the Father’s care, the Father communicate with X via telephone/Skype/FaceTime or equivalent app at such times as agreed between the parties and in default of agreement as follows:

(a) each Monday, Wednesday and Friday night between 5:30 pm and 7:00 pm with the Father to make the call and the Mother to facilitate the call (with the expectation that the call last not less than 10 minutes); and

(b) at all reasonable times as requested by X with the Father to make the call and the Mother to facilitate the call.

7. When X is not otherwise in the Mother’s care, the Mother communicate with X via telephone/Skype/FaceTime or equivalent app at such times as agreed between the parties and in default of agreement as follows:

(a) each Monday, Wednesday and Friday night between 5:30 pm and 7:00 pm with the Mother to make the call and the Father to facilitate the call (with the expectation that the call last not less than 10 minutes); and

(b) at all reasonable times as requested by X with the Mother to make the call and the Father to facilitate the call.

Special Occasions

8. X spend time with the Father:

(a) on X’s birthday in 2023 (if X is not otherwise in the Father’s care) and each alternate year thereafter, as agreed between the parties in writing and in default of agreement, for a period of two days as agreed and failing agreement, from the conclusion of kindergarten/school (or 3:30pm if a non-school day) on the day immediately preceding X’s birthday until the conclusion of kindergarten/school (or 3:30pm if a non-school day) the day immediately following her birthday;

(b) on the Father’s Day weekend each year from 6:00pm Friday until 6:00pm Sunday; and

(c) at times and places as otherwise agreed between the parties in writing.

9. The Father’s time pursuant to order 4 be suspended and X spend time with the Mother (if X is not otherwise in the Mother’s care) as follows:

(a) on the Mother’s Day weekend each year from 3:30pm Friday until 2:00pm Sunday;

(b) on X’s birthday in 2024 and each alternate year thereafter, as agreed between the parties in writing and in default of agreement, for a period of two days as agreed and failing agreement, from the conclusion of kindergarten/school (or 3:30 pm if a non-school day) on the day immediately preceding X’s birthday until the conclusion of kindergarten/school (or 3:30pm if a non-school day) the day immediately following her birthday.

Changeovers

10. Except as set out in order 4(b), for the purposes of changeover the parties shall meet at B Venue, Suburb D, Victoria, or at any other location as agreed between the parties in writing.

The Mother’s Health

11. The Mother will keep the Father advised of her health and notify him immediately if she becomes unwell and is unable to care for X.

Restraints

12. Each of the parties, by themselves or by their agents, is hereby restrained by injunction from:

(a) speaking negatively about the other party within the hearing or presence of X or from permitting any other person to do so;

(b) involving X in any form of conflict between the parents;

(c) being adversely affected by alcohol or illegal drugs while spending time or communicating with X; or

(d) exposing X to any form of family violence.

Other

13. That each of the parties:

(a) keep the other advised at all times of the current residential address and telephone number (if any) of X and advise the other of any change within twenty-four (24) hours days of such change;

(b) advise the other immediately in the event that X suffers any serious illness or injury;

(c) advise the other if an appointment is made for X to attend upon a General Practitioner, specialist or nurse relating to their health and wellbeing and keep the other party advised of the outcome of any such appointment;

(d) advise the other of all extra-curricular activities in which X is involved to allow the other parent to be involved and permit the other to attend such activities;

(e) authorise any medical practitioner upon which X may attend from time to time, to communicate with the other in respect to X’s medical condition and/or requirements; and

(f) subject to any school policy authorise all kindergartens/schools at which X may attend, from time to time:

(i) provide to the other parent, at the other parent’s expense, copies of all school reports, school notices and school photographs in relation to X;

(ii) allow the school/kindergarten staff to communicate with the other parent, either by telephone, in writing or by personal attendance, in respect to X’s progress and wellbeing at school/kindergarten; and

(iii) permit the other to attend all school functions and events which parents are normally invited to attend.

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.