FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Howell & Potter [2025] FedCFamC2F 691
File number(s): NCC 3930 of 2022 Judgment of: JUDGE CARTY Date of judgment: 28 May 2025 Catchwords: FAMILY LAW – PARENTING – LIVE WITH -RELOCATION – Where the mother seeks an order to relocate the two children from City B to Melbourne – Where the mother will not move to Melbourne unless she is permitted to relocate the children – Where the father opposes the relocation – Where the parents agree that if they live in the same city the children will live in an equal time week about arrangement with each parent – Where there are no safety issues in the household of either parent – Where the children have additional needs due to their diagnoses – Where the children have meaningful relationships with both parents – Where the mother’s capacity to financially support herself and the children will be enhanced if she is permitted to relocate to Melbourne – Where the mother’s mental health and sense of wellbeing will be enhanced by emotional and practical support from her family in Melbourne – Where the mother’s parenting capacity will be enriched by moving to Melbourne – Where father and his partner and child are able to relocate to Melbourne – Order made permitting relocation of children to Melbourne.
ALLOCATION OF RESPONSIBILITY FOR DECISION MAKING – Parents agree that they will share decision making for major long-term issues relating to the children except long-term medical issues – Where the mother seeks sole decision making for long-term medical issues relating to the children – Where the children’s long term medical needs will be met if the mother has sole responsibility for decision-making about long-term medical issues relating to the children – Where it is necessary to eliminate opportunities for parental conflict and avoid delay in obtaining appropriate medical assistance for the children – Order made that mother will have sole decision making for all major long-term issues relating to the children.
FAMILY LAW – FINANCIAL – SPOUSAL SUPPORT – Mother seeks order for de facto spousal maintenance – Father opposes order – Where the Court is satisfied that the mother is currently unable to support herself adequately – Where the Court is satisfied that the father has the capacity to pay spouse maintenance – Order made for payment of periodic spouse maintenance for six months from the date of these Orders
Legislation: Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 60CE, 60CG, 61CA, 61D, 61DAA, 64B, 65AA, 65D, Part VII, 90SB, 90SD, 90SE, 90SF, Part VIII Cases cited: AIM v AIF (1999) 24 Fam LR 756
Atwill & Atwill (1981) 7 Fam LR 573
Babcock & Wadell [2018] FamCA 276
Bevan & Bevan (1993) 120 FLR 283
Blass & Blass [2022] FedCFamC1A 63
Bolitho & Cohen (2005) 33 Fam LR 471
Corelli & Beroni [2021] FedCFamC1F 125
In the Marriage of Murkin (1980) 5 Fam LR 782
U v U [2022] HCA 36; (2002)
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CaseChat Overview and Summary
The court considered whether the relocation would be in the best interests of the children, given the additional needs arising from their diagnoses, the meaningful relationships with both parents, and the potential enhancement of the mother's capacity to support herself and the children financially and emotionally in Melbourne. The court also deliberated on the allocation of decision-making responsibilities, particularly regarding long-term medical issues, to ensure the children's needs were met without conflict and delay.
In its judgment, the court ruled that the relocation to Melbourne would be in the children's best interests and granted the mother permission to move with them, provided they reside within a 30km radius of a specified suburb. The court also decided that the mother should have sole responsibility for making decisions about major long-term medical issues, while requiring her to consult with the father and inform him of her decisions. The court further ordered that the father pay the mother periodic spousal maintenance for six months, acknowledging her current inability to support herself adequately and his capacity to pay.
The court's detailed orders cover aspects of living arrangements, time-sharing, communication, changeovers, medical matters, education, travel, and non-denigration, ensuring a structured and considerate approach to parenting post-separation.
Orders
Orders of the court
NCC 3930 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS HOWELL
Applicant
AND:
MR POTTER
Respondent
ORDER MADE BY:
JUDGE CARTY
DATE OF ORDER:
28 MAY 2025
THE COURT ORDERS THAT:
Responsibility for decisions about major long-term issues other than medical issues
1. The parents will have joint responsibility for making decisions about major long-term issues other than medical issues in relation to the children X born in 2016 and Y born in 2017 (“the children”).
Responsibility for decisions about major long-term medical issues
2. The mother will have sole responsibility for making decisions about major long-term medical issues in relation to the children, including decisions about speech therapy and psychological therapy, and in the exercise of her sole decision-making responsibility, save in the case of an emergency, prior to making such decisions the mother must:
(a) Provide the father with details of the decision to be made and allow him seven (7) days to respond with his views.
(b) Consider the father’s views in relation to the proposed decision.
(c) Inform the father of the decision she has made within 48 hours of making the decision.
3. Communication between the parents for the purposes of Order 2 hereto will be by email.
Live with arrangements
4. The children will live with the mother.
5. The mother is permitted to relocate the residence of the children to Melbourne, Victoria.
6. The mother will establish and maintain the children’s residence within a 30km radius of the suburb of Suburb C, unless otherwise agreed in writing between the parents.
Spend time arrangements
When the parents are living in different cities and the children’s time with the father is to take place in Melbourne
7. Not less than 24 hours before the children spend time with the father pursuant to these Orders, the father will provide the mother with particulars of the address where the children will stay overnight with him.
8. Unless otherwise agreed between the parents, when the children spend time with the father overnight and they are required to attend school the next day, the father will accommodate the children overnight at a place which is no further away than a one-hour drive from the mother’s home. In all other circumstances changeover will occur at a place which is no further away than a one hour driving time from the mother’s residence.
Communication
9. Until the third anniversary of this Order, unless otherwise agreed in writing between the parents, each parent will do all things required to facilitate the children to have telephone communication with the parent with whom they are not then spending time or living each evening between 6.00pm and 6.30pm, and the parent who is not with the children at the relevant time will initiate the communication by calling the other parent’s mobile telephone number.
10. Commencing from the third anniversary of this Order, each parent will do all things required to facilitate the children to have telephone communication with the other parent:
(a) By Facetime, telephone or other electronic means as may be initiated by the other parent, each Monday, Wednesday and Friday between 6.00pm and 6.30pm, or as may otherwise be agreed in writing; and
(b) At all reasonable times and by such means including Facetime, telephone, text message or other electronic means as may be requested by the children.
THE COURT ORDERS BY CONSENT THAT:
11. The parents are not required to consult with each other when deciding about an issue relating to the children which is not a major long-term issue, while the children are in their respective care.
If the children live in Melbourne with the mother and the father lives in City B or interstate from the children
12. The children will spend time with the father at times to be agreed in writing between the parents and failing agreement:
(a) During the school terms as timetabled by the school which the children attend:
(i) In City B, for an extended weekend of up to four consecutive nights each month, in months that the children do not spend time with the father pursuant to order 12(a)(ii) or spend a week or more of school holiday time with the father pursuant to order 12(b):
A. On dates to be nominated by the father in writing no less than thirty (30) days prior to the time commencing; and
B. Where practicable to be nominated by the father to coincide with non-school days for the children and public holidays in City B and/or Melbourne.
(ii) In Melbourne, each alternate week on a fortnightly basis, with changeover to occur each Sunday at 5.00pm and, unless otherwise agreed in writing, PROVIDED THAT:
A. The father nominates the dates in writing no less than thirty (30) days prior to the time commencing; and
B. The time nominated by the father pursuant to order 12(a)(i) and 12(a)(ii) must not conflict with the children’s time with the mother for special occasions pursuant to Order 14 hereto.
(b) During the school term holidays, being the school holiday periods as timetabled by the school the children attend, for all but the last five days of each of the term holidays, commencing from the conclusion of school on the last day of term and concluding at 9.00am on the fifth penultimate day of the school term holidays.
(c) During the long school holidays, being the school holiday periods as timetabled by the school the children attend:
(i) In two week long block periods, with the father to have the first two weeks in even years and the mother to have the first two weeks in odd years and for the avoidance of doubt long school holiday period is taken to end at 5.00pm on the last Friday before the commencement of Term 1.
(ii) Commencing in the 2027/2028 school holidays, for one half of the long school holidays:
A. The second half of the holiday period in even numbered years, concluding at 5.00pm on the last Friday before the commencement of Term 1; and
B. The first half of the holiday period in odd numbered years, commencing from the conclusion of school on the last day of term.
If both parents live in the same city (Melbourne or City B)
13. If both parents live in the same city as the children, for example if the father relocates to live in Melbourne or the mother remains living in City B with the children, the children live with the parents at times to be agreed in writing and failing agreement, as follows:
(a) During the school term, the children live with the mother and spend time with the father in a fortnightly cycle as agreed between the parents, or in default of agreement in an equal care arrangement with changeover to occur each Sunday at 5.00pm or such lesser time as the father may nominate in writing.
(b) During the school holidays:
(i) For the term holidays, with the father for the first half and the mother for the second half in even years, and with the mother for the first half and the father for the second half in odd years; and
(ii) For the long summer holidays, in two-week blocks, with the father to have the first two weeks in even years and the mother to have the first two weeks in odd years.
Special Occasions
14. The children spend time with each parent for special occasions at times to be agreed and failing agreement, as follows:
(a) Notwithstanding Orders 12 and 13 hereto, the children will spend time with each parent at Christmas as agreed in writing and failing agreement:
(i) In even numbered years, with the mother from 3.00pm Christmas Eve until 4.00pm Christmas Day, and with the father from 4.00pm Christmas Day until 5.00pm Boxing Day; and
(ii) In odd numbered years, with the father from 3.00pm Christmas Eve until 4.00pm Christmas Day, and with the mother from 4.00pm Christmas Day until 5.00pm Boxing Day.
(b) On the children’s birthdays:
(i) The children shall spend time with the non-resident parent from 3pm or the conclusion of school or day care until 7.00pm if a school day, and if a non-school day, for a period of four hours as agreed, but failing agreement from 3.00pm to 7.00pm.
(c) On the mother’s birthday:
(i) With the mother for her birthday from 3pm or the conclusion of school or day care until 7.00pm if a school day, and if a non-school day, for a period of four hours as agreed, but failing agreement from 3.00pm until 7.00pm any order inconsistent with this order is suspended.
(d) On the father’s birthday
(i) With the father for his birthday from 3pm or the conclusion of school or day care until 7.00pm if a school day, and if a non-school day, for a period of four hours as agreed, but failing agreement from 3.00pm until 7.00pm any order inconsistent with this order is suspended.
(e) On Father’s Day:
(i) For Father’s Day weekend, from the conclusion of school on Friday, or if Friday is a non-school day from the conclusion of school on Thursday, until the commencement of school on Monday, or if Monday is a non-school day until the commencement of school on Tuesday; and
(f) On Mother’s Day:
(i) For Mother’s Day weekend with the mother, from the conclusion of school on Friday, or if Friday is a non-school day from the conclusion of school on Thursday, until the commencement of school on Monday, or if Monday is a non-school day, until the commencement of school on Tuesday.
15. Unless otherwise agreed in writing, if the children are living in Melbourne and the father is living in City B, the father must provide to the mother at least 30 days’ notice of his intention to spend time with the children for the special occasions set out in Order 14 hereto and:
(a) The time will take place in the city in which the children are living unless otherwise specified; and
(b) The mother is not permitted to travel with the children away from the children’s home city on the special occasions set out in Order 14, unless the father has failed to notify the mother of his intention to spend time with the children on the particular special occasion.
Changeover
Parents living in same city
16. If both parents are living in the same city, unless otherwise agreed between the parents in writing, all changeovers will occur as follows:
(a) On school days, at the children’s school; and
(b) On non-school days, the father will return the children to the mother’s residence at the commencement of her time with them and the mother will return the children to the father’s residence at the conclusion thereof.
Parents living in different cities
17. If both parents are living in different cities, unless otherwise specified in these Orders or agreed between the parents in writing:
(a) Where the children’s time with the father takes place in Melbourne:
(i) Changeover will take place at the children’s school where practicable.
(ii) On non-school days, the father or his agent will collect the children from the mother’s residence at the commencement of time and return them to her residence at the conclusion of time.
(iii) The father will meet the cost of his travel and accommodation for the children to spend time with him in Melbourne.
(iv) The father will notify the mother at least seven days prior to travel of his flight details and thereafter of any changes to scheduled flights and estimate times for changeover.
(b) Where the children’s time with the father takes place in City B:
(i) The mother will book and pay for the children’s economy air travel flight to City B upon receiving the father’s nomination pursuant to order 12(a)(i)A hereto and the father will book and pay for the children’s return flight to Melbourne.
(ii) The mother will notify the father at least fourteen (14) days prior to travel of the children’s flight details and thereafter of any changes to scheduled flights and the father will notify the mother at least fourteen days prior to the return date of the children’s flight details and thereafter of any changes to scheduled flights.
(iii) The mother or her agent will accompany the children on the arriving leg of the travel between Melbourne and City B, at the mother’s expense.
(iv) The father or his agent will accompany the children on the returning leg of the travel between City B and Melbourne at the father’s expense.
(v) The children are permitted to fly unaccompanied upon Y attaining the age of 12 years, or such other age as the parents may agree in writing.
(vi) Changeover in City B will take place at City B airport and changeover in Melbourne will take place at Tullamarine airport.
Parental communication and authorities
18. Unless otherwise agreed in writing, the mother and father will communicate with one another in relation to the children by email, save for when urgent communication is required which will occur by text message, and in the case of an emergency by telephone.
19. If the children are living in Victoria with the mother, the mother will send to the father a written ‘handover’ message by email on a monthly basis, which provides a summary of relevant information with respect to the children, under the following headings:
(a) Activities.
(b) Schooling.
(c) Social and friendship issues.
(d) Medical/psychological needs.
(e) Behaviour.
20. The parents must keep each other informed of their residential address, preferred email address and mobile telephone number, and keep the other parent advised of any proposed changes to the above details in writing including by email or text message within seven (7) days of any proposed changes.
Medical matters
21. The mother and the father:
(a) Must forthwith provide the other parent with a copy of any report or record provided to them by a medical, dental or other health professional attended by the children.
(b) Have leave to provide a copy of these Orders to any medical, dental or other health professional, including speech therapists, attended by the children.
(c) Are authorised to receive from the children’s medical practitioners (including speech therapists, counsellors and psychologists) information about each child’s medical condition, treatment, and a copy of any medical record and reports.
(d) Will inform the other parent of any medication prescribed for the children from time to time and provide the appropriate instructions for its administration.
22. In the event that either of the children fall sick or become injured (save and except for sustaining minor injuries) while in the care of a parent, that parent:
(a) Must notify the other parent as soon as practicable of the illness or injury.
(b) In the case of emergency or hospitalisation:
(i) Must notify the other parent as soon as practicable via telephone and if the other parent does not answer their phone, the caring parent must do all things practicable to reach the other parent including leaving a voicemail message; and
(ii) If medical treatment has been obtained after an emergency or hospitalisation, must notify the other parent as soon as practicable of the treatment and provide the contact details of any medical professional that has treated the child(ren).
23. If the children are living in Melbourne and the father is living in City B, both parents will facilitate remote medical appointments for the children, when appropriate.
Education and extracurricular activities
24. The mother and the father are each hereby authorised to:
(i) Receive information, notices, reports, class lists, and family contact details and photographs directly from any school and/or provider of before and after school care and extracurricular and sporting activities attended by the children.
(ii) Attend all events parents are invited to and permitted to attend, including but not limited to parent-teacher interviews, open days, concerts, and like events.
(iii) Provide a copy of these Orders to any school and/or provider of before and after school care and extracurricular activities or sporting activities attended by the children.
25. The mother and the father must keep each other informed at all times of any significant school, social or extracurricular events for the children which have been brought to their individual attention (and not available through the school’s shared parent communications) including but not limited to school concerts and awards nights, and will provide the other parent with information regarding such events as soon as practicable once it comes to hand.
26. If both parents are living in the same city, unless the prior written consent of the other parent is first obtained, the parents be and are hereby restrained from enrolling the children in:
(a) Any new extracurricular activities or schedule.
(b) Any one-off activities if the activity interferes with the other parents’ time with the children or if the activity occurs within school hours.
27. Each parent is authorised to attend the children’s first and last day of each new school year.
Travel
28. In the event the mother or the father plan to travel interstate with the children, save for any regular travel between City B and Melbourne pursuant to these Orders, unless otherwise agreed in writing, no less than a week prior to the travel:
(a) The parent intending to travel with the children must advise the other parent in writing of their intended travel plans as soon as possible once those plans are known but no less than seven (7) days prior to travel; and
(b) No less than five (5) days prior to travel, the parent travelling with the children must provide the other parent with details for the children’s travel, including precise dates of travel and contact details for the duration of their travel along with a copy of the airline tickets/flight details, travel itinerary and accommodation details, and must forthwith inform the other parent of any changes to those details.
29. Pursuant to section 65Y of the Family Law Act 1975 the children are permitted to travel internationally with each parent, when the children are in the care of that parent pursuant to these Orders, and unless otherwise agreed in writing subject to the following conditions:
(a) The children travel only to countries in respect of which:
(i) The Hague Convention on the Civil Aspects of International Child Abduction is in force with Australia; and
(ii) The Australia Department of Foreign Affairs and Trade Smart Traveller (or equivalent government department) travel advice is “Level 2 – exercise a high degree of caution” or lower.
(b) The parent proposing to take the children overseas, (“the travelling parent”), must give the other parent 60 days written notice of their intention to do so.
(c) Not less than 30 days prior to the proposed day for leaving the Commonwealth of Australia the travelling parent must provide to the other parent in writing:
(i) Details of the departure date and departure location, date of arrival, and return date, including details of flights, including the airline name, flight number, and the countries and all other flights to which they propose the children will travel.
(ii) An itinerary for the journey including telephone contact numbers and all addresses the travelling parent, and the children stay at while they are overseas, including the name of all persons whom the children stay with while overseas.
(d) The travelling parent must facilitate communication for the children with the other parent at all reasonable times in accordance with Order 9 or Order 10 hereto as applicable.
30. Each parent will sign all documents necessary to apply for a passport for each child or to renew or replace a child’s passport (such renewal to be applied for not less than seven months before expiry), within seven (7) days of a written request by the other parent to sign any document necessary for the issue of children’s passport.
31. The parents will each hold one of the children’s passports (the father will hold X’s passport and the mother will hold Y’s passport unless otherwise agreed), subject to the holder of the passport delivering to the other parent the child’s passport at least twenty-one (21) days prior to any planned departure date for international travel by the other parent.
32. The parents shall each return the children’s passports to the usual holder within seven (7) days of return from international travel with the children.
Non-Denigration Order
33. Pursuant to section 68B of the Family Law Act 1975, the parties are restrained, and an injunction is granted restraining them from:
(a) Making negative, derogatory or disparaging comments denigrating or criticising the other parent or members of the parent’s household in the presence or hearing of the children or on social media, and from allowing or permitting any other person to do so; and
(b) Discussing the Court proceedings or any issues in relation to each other or members of the other parent’s families in the presence or hearing of the children and from allowing or permitting any other person to do so.
THE COURT NOTES THAT:
A. The parents agree that each parent will pay one half of all costs associated with obtaining, renewing, or replacing the children’s passports.
AND THE COURT ORDERS THAT:
Spousal maintenance
34. Pursuant to s.90SE of the Family Law Act 1975 the father will pay to the mother by way of periodic spouse maintenance the sum of $389.00 each week continuing for a period of six (6 months) from the date of these Orders, and payment is to be made:
(a) On Monday each week.
(b) By electronic transfer to bank account nominated by the mother in writing.
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
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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