FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Holt & Holt [2022] FedCFamC2F 608
File number(s): NCC 1624 of 2021 Judgment of: JUDGE KEARNEY Date of judgment: 13 May 2022 Catchwords: FAMILY LAW – parenting – children aged 7 & 5 - whether interstate relocation be allowed – impact on significant and substantial time – potential adverse effect of separation - no serious risk of harm issues – poor co‑parenting relationship – best interests of children Legislation: Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA Cases cited: Aldridge & Keaton [2009] FamCAFC 229
Angeli & Farina [2021] FedCFamC1F 266
Franklyn & Franklyn [2019] FamCAFC 256
Hepburn & Noble [2010] FamCAFC 111
Mazorski & Albright [2007] FamCA 520
MRR & GRR [2010] HCA 4
Star & Duggan [2009] FamCAFC 115
Taylor & Barker [2007] FamCA 1246
Division: Division 2 Family Law Number of paragraphs: 392 Date of hearing: 28 February 2022, 1 & 2 March 2022 Place: Newcastle Counsel for the Applicant: Mr Guyder Solicitor for the Applicant: Braye Cragg Solicitors Counsel for the Respondent: Mr Duane Solicitor for the Respondent: Dawson & Gardiner Solicitors ORDERS
NCC 1624 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR HOLT
Applicant
AND: MS HOLT
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1.The mother’s application to relocate the children to live in Victoria is dismissed.
2.The mother shall have sole parental responsibility for the children:
(a)X born in 2014 (‘X’); and
(b)Y born in 2016 (‘Y’)
3.The children shall live with the mother.
4.Unless otherwise agreed in writing between the parties, the children shall spend time with the father as follows:-
(a)Until 27 June 2022:
(i)In week one, from the conclusion of school Friday (or 3.00pm if a non‑school day) until 4.00pm Sunday; and
(ii)In week two, from the conclusion of school Wednesday (or 3.00pm if a non-school day) until the commencement of school Thursday (or 9.00am if a non-school day).
(b)During each school term as exercised by the children’s school, commencing 27 June 2022:
(i)In week one, from the conclusion of school Friday (or 3.00pm if a non‑school day) until the commencement of school Monday (or 9.00am if a non-school day); and
(ii)In week two, from the conclusion of school Wednesday (or 3.00pm if a non-school day) until the commencement of school Thursday (or 9.00am if a non-school day).
5.Unless otherwise agreed in writing between the parties, the children shall spend time with each of the parties, during the following school holidays as exercised by the children’s school/s:-
(a)During the Autumn, Winter and Spring school holidays
(i)In even-numbered years:
A.With the mother from the conclusion of school on the last day the children are required to attend school until 4.00pm on the middle Sunday of the school holidays; and
B.With the father from 4.00pm on the middle…
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CaseChat Overview and Summary
The primary legal issue was whether Ms. Holt's application to relocate the children interstate should be granted. The court considered the impact of such a move on the children's existing time with their father, the potential adverse effects of the separation on the children, and the overall best interests of the children. The court also noted the poor co-parenting relationship between the parties. In making its decision, the court applied the principles set out in the Family Law Act 1975, particularly focusing on the need to avoid serious risk of harm and to ensure the best interests of the children were paramount.
Judge Kearney determined that the relocation should not proceed, as it would significantly disrupt the existing time arrangements with the father and potentially harm the children due to the existing poor co-parenting relationship. The court outlined detailed parenting orders that maintained the children's existing contact with their father while allocating sole parental responsibility to the mother. The orders also specified the children's time with each parent during school terms and holidays, as well as arrangements for special occasions and communication between the parties.
In summary, the court dismissed the mother's application to relocate the children to Victoria, maintaining the existing parenting arrangements with detailed provisions for the children's time with each parent, and outlined specific communication and information-sharing obligations between the parties.
Orders
Orders of the court
NCC 1624 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR HOLT
Applicant
AND:
MS HOLT
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
13 MAY 2022
THE COURT ORDERS THAT:
1. The mother’s application to relocate the children to live in Victoria is dismissed.
2. The mother shall have sole parental responsibility for the children:
(a) X born in 2014 (‘X’); and
(b) Y born in 2016 (‘Y’)
3. The children shall live with the mother.
4. Unless otherwise agreed in writing between the parties, the children shall spend time with the father as follows:-
(a) Until 27 June 2022:
(i) In week one, from the conclusion of school Friday (or 3.00pm if a non‑school day) until 4.00pm Sunday; and
(ii) In week two, from the conclusion of school Wednesday (or 3.00pm if a non-school day) until the commencement of school Thursday (or 9.00am if a non-school day).
(b) During each school term as exercised by the children’s school, commencing 27 June 2022:
(i) In week one, from the conclusion of school Friday (or 3.00pm if a non‑school day) until the commencement of school Monday (or 9.00am if a non-school day); and
(ii) In week two, from the conclusion of school Wednesday (or 3.00pm if a non-school day) until the commencement of school Thursday (or 9.00am if a non-school day).
5. Unless otherwise agreed in writing between the parties, the children shall spend time with each of the parties, during the following school holidays as exercised by the children’s school/s:-
(a) During the Autumn, Winter and Spring school holidays
(i) In even-numbered years:
A. With the mother from the conclusion of school on the last day the children are required to attend school until 4.00pm on the middle Sunday of the school holidays; and
B. With the father from 4.00pm on the middle Sunday of the school holidays until 9.00am on the first day the children are required to return to school.
(ii) In odd-numbered years:
A. With the father from the conclusion of school on the last day the children are required to attend school until 4.00pm on the middle Sunday of the school holidays; and
B. With the mother from 4.00pm on the middle Sunday of the school holidays until 9.00am on the first day the children are required to return to school.
(b) During the Summer school holidays:-
(i) in even-numbered years:-
A. with the mother –
· from the conclusion of school on the last day the children are required to attend school until 4.00pm on the third Sunday of the school holidays; and
· from 4.00pm on the fifth Sunday of the school holidays until 4.00pm on the sixth Sunday of the school holidays
B. with the father –
· from 4.00pm on the third Sunday of the school holidays until 4.00pm on the fifth Sunday of the school holidays; and
· from 4.00pm on the sixth Sunday of the school holidays until 9.00am on the first day the children are required to return to school.
(ii) in odd-numbered years:-
A. with the father –
· from the conclusion of school on the last day the children are required to attend school until 4.00pm on the third Sunday of the school holidays; and
· from 4.00pm on the fifth Sunday of the school holidays until 4.00pm on the sixth Sunday of the school holidays
B. with the mother –
· from 4.00pm on the third Sunday of the school holidays until 4.00pm on the fifth Sunday of the school holidays; and
· from 4.00pm on the sixth Sunday of the school holidays until 9.00am on the first day the children are required to return to school.
6. Unless otherwise agreed in writing between the parties, the children shall spend time with each of the parties, during the following special occasions:-
(a) Over the Mother’s Day weekend with the mother (if the children are not already living with the mother) from the conclusion of school Friday (or 3.00pm if a non-school day) until the commencement of school Monday (or 9.00am if a non-school day).
(b) Over the Father’s Day weekend with the father (if the children are not already spending time with the father) from the conclusion of school Friday (or 3.00pm if a non-school day) until the commencement of school Monday (or 9.00am if a non-school day).
(c) On each of the children’s birthdays with the parent whom they would not otherwise see in the afternoon –
(i) from the conclusion of school until 7.00pm on a school day; and
(ii) from 12.00noon until 5.00pm on a non-school day.
(d) During the Christmas festive period –
(i) in even-numbered years, with the father from 3.00pm Christmas Eve until 3.00pm Christmas Day.
(ii) in odd-numbered years, with the mother from 3.00pm Christmas Eve until 3.00pm Christmas Day.
7. Unless otherwise agreed in writing between the parties, to implement changeovers of the children between them:-
(a) where time is specified to commence or conclude on a school day then the changeover location is the children school/s; and
(b) at all other times, the changeover location is the McDonald’s restaurant at Suburb B.
8. The children shall have telephone or FaceTime communication with the party they are not otherwise in the care of each Monday and Wednesday from 5.30pm to 6.00pm and to facilitate this communication, the party who has the care of the children will:-
(a) call the other party’s nominated mobile telephone number; and
(b) ensure the children are given privacy to speak to the other party.
9. Each party is restrained and an injunction shall issue prohibiting them from denigrating the other party, the other party’s family or a person with whom the other party has a domestic relationship, in the presence or hearing of the children and shall remove the children from the presence or hearing of any other person doing so.
10. Notwithstanding the allocation of sole parental responsibility to the mother:-
(a) each party is at liberty to liaise directly with any medical or allied health professional involved with the children, including being added to any case plan involving C Families or any other form of counselling and to facilitate this order, the parties are to immediately notify each other in writing of the contact details of any appointments the children may have with their medical treators or allied health professionals;
(b) each party is at liberty to liaise directly with the children’s educational providers as to the children’s progress including but not limited to them:-
(i) receiving copies of all reports, newsletters, photographs (at their own expense);
(ii) accessing any school apps; and
(iii) attending any school events to which parents are usually invited to attend;
(c) each party is at liberty to attend any extra-curricular or sporting events to which parents usually attend.
and to give effect to the above, this order shall constitute an irrevocable authority between the parties and the various service providers for that purpose.
11. The parties shall notify each other as soon as reasonably practicable of any serious medical condition, significant trauma, illness or injury suffered by the children requiring medical treatment, transportation by ambulance, hospitalisation or attendance/referral to a medical practitioner whilst in their respective care and as soon as practicable, provide to the other party details of such illness, injury, medical treatment, or hospitalisation; and if not clear from Order 10 above, this order shall constitute an irrevocable authority between the parties and the applicable medical treatment providers or health professionals for the purpose of engaging with the other party.
12. Forthwith, the parties shall provide to each other their residential address, contact telephone number and email address and advise the other parent in writing of any change to same as soon as practicable or within forty-eight (48) hours of such change occurring.
13. Unless otherwise specified, any reference to the parties communicating or reaching agreement “in writing” shall include but not be limited to communications via text message and email.
14. All outstanding Part VII applications are withdrawn and dismissed.
THE COURT NOTES THAT:
A. Despite the allocation of sole parental responsibility to the mother, the Court anticipates the mother will change the children’s residence to a location that supports the children being able to travel to and from school to each party’s house so as not to adversely affect the children’s best interests or welfare.
B. The Part VIII proceedings remain listed in chambers for consideration on Thursday 9 June 2022 at 9:00am with no requirement for appearances.
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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