Kelly & Hutchens

Case [2024] FedCFamC1F 662

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Kelly & Hutchens [2024] FedCFamC1F 662

File number: MLC 8290 of 2021
Judgment of: MCNAB J
Date of judgment: 1 October 2024
Catchwords: FAMILY LAW – PARENTING – Where the children live with the mother and spend time with the father – Where the children have spent limited overnight time with the father – Where there is a high level of animosity between the parties – Where neither party presents as a risk to the children’s safety – Where the scope of the dispute is narrow – Orders for the children to live with the mother and spend significant time with the father – Parties to have joint decision-making responsibility.   
Legislation:

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61C, 61CA, 61D, 61DAA, 61DAB, 64B, 65D

Explanatory Memorandum, Family Law Amendment Bill 2023   
Cases cited:

In the Marriage of Chandler (1981) FLC 91-008

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Whisprun Pty Ltd v Dixon [2003] HCA 48

Division: Division 1 First Instance
Number of paragraphs: 120
Date of hearing: 27-31 May 2024, 4 June 2024
Place: Melbourne
Counsel for the Applicant: Ms Dellidis SC
Solicitor for the Applicant: Operational Legal Australia
Counsel for the Respondent: Mr Puckey KC
Solicitor for the Respondent: Lighthouse Family Lawyers Pty Ltd

ORDERS

MLC 8290 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR KELLY

Applicant
AND:

MS HUTCHENS

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

1 OCTOBER 2024

THE COURT ORDERS THAT:

1.The father and the mother have joint parental responsibility for all major long-term issues regarding the children X born in 2012 and Y born in 2017 (“the children”).

LIVING ARRANGEMENTS

2.The children live with the mother.

School Terms

3.The children spend time with the father in Term 4, 2024:

(a)For the first 4 weeks:

(i)Each alternate weekend from the conclusion of school on Friday (or 3:30pm Thursday if a non-school day) until Sunday 5:00pm; and

(ii)Each Thursday from the conclusion of school (or 9:30am if a non-school day) until 8pm.

(b)For the balance of Term 4:

(i)Each alternate weekend from the conclusion of school on Friday (or 3:30pm Thursday if a non-school day) until the commencement of school on Monday (or Tuesday if Monday is a non-school day); and

(ii)Each Thursday from the conclusion of school (or 9:30am if a non-school day) until 8pm.

4.The children spend time with the father during school terms from Term 1 2025 and thereafter as follows:

(a)each alternate weekend from the conclusion of school on Thursday (or 9.30am if a non-school day) until the commencement of school on Monday (or Tuesday if a non-school day); and

(b)each alternate Thursday from the conclusion of school (or 9.30am if a non- school day) until the commencement of school on Friday (or 5.00pm if a non-school day).

School Term Holidays

5.The children spend time with the father during school term holidays as follows:

(a)for the Term…

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Kelly & Hutchens [2024] FedCFamC1F 662
Case
[2024] FedCFamC1F 662
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Mr Kelly and Ms Hutchens involved a dispute over the parenting arrangements for their two children, born in 2012 and 2017. The primary issue was determining the living arrangements and the amount of time each parent would spend with the children, as well as establishing joint decision-making responsibilities. The parents had a contentious history, marked by significant animosity and differing accounts of events, which influenced their co-parenting dynamics.

The court considered the children's need to maintain a relationship with both parents, despite the high level of conflict between them. Both parents expressed a desire for the children to have a strong relationship with the other, although they disagreed on the frequency and duration of the children's time with the father. The court recognised the children's love for both parents and their wish to spend time with each. It found that the current arrangement of limited overnight time with the father was insufficient to meet the children's emotional and developmental needs. The court emphasised the importance of reducing conflict and allowing the children to bond with both parents without the stress of litigation influencing their relationship.

After careful consideration, the court ordered that the children live with the mother but spend significant time with the father, including during holidays. The parents were granted joint decision-making responsibility for major long-term issues concerning the children. Detailed schedules were set for the children's time with the father during school terms and holidays, as well as during special occasions such as birthdays and public holidays. The court also mandated communication between the parents through a specified platform, required them to share medical and educational information, and prohibited them from speaking negatively about each other in front of the children. Additionally, the father was ordered to engage in counselling for at least six months. All other pending applications were dismissed.

Orders

Orders of the court

MLC 8290 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR KELLY

Applicant

AND:

MS HUTCHENS

Respondent

ORDER MADE BY:

MCNAB J

DATE OF ORDER:

1 OCTOBER 2024

THE COURT ORDERS THAT:

1. The father and the mother have joint parental responsibility for all major long-term issues regarding the children X born in 2012 and Y born in 2017 (“the children”).

LIVING ARRANGEMENTS

2. The children live with the mother.

School Terms

3. The children spend time with the father in Term 4, 2024:

(a) For the first 4 weeks:

(i) Each alternate weekend from the conclusion of school on Friday (or 3:30pm Thursday if a non-school day) until Sunday 5:00pm; and

(ii) Each Thursday from the conclusion of school (or 9:30am if a non-school day) until 8pm.

(b) For the balance of Term 4:

(i) Each alternate weekend from the conclusion of school on Friday (or 3:30pm Thursday if a non-school day) until the commencement of school on Monday (or Tuesday if Monday is a non-school day); and

(ii) Each Thursday from the conclusion of school (or 9:30am if a non-school day) until 8pm.

4. The children spend time with the father during school terms from Term 1 2025 and thereafter as follows:

(a) each alternate weekend from the conclusion of school on Thursday (or 9.30am if a non-school day) until the commencement of school on Monday (or Tuesday if a non-school day); and

(b) each alternate Thursday from the conclusion of school (or 9.30am if a non- school day) until the commencement of school on Friday (or 5.00pm if a non-school day).

School Term Holidays

5. The children spend time with the father during school term holidays as follows:

(a) for the Term 1 and 2 holidays from 2025 and thereafter:

(i) from the conclusion of school on the final day of term until 8.00pm on the middle day; and

(ii) if in calculating the “middle day” there is an uneven number of nights, the children spend the additional night with the father,

(b) for the Term 3 holidays from 2025 and thereafter:

(i) from the conclusion of school on the final day of term until the commencement of school on the first day of Term 4.

Long Summer Holidays

6. The children spend time with the father during the long summer holidays:

(a) In the first week of the holiday period, from 9:00am on the first Saturday of the holiday period to 5:00pm the following Thursday in 2024/2025 and to 5:00pm the following Saturday from 2025/2026 onwards.

(b) In the third week of the holiday period, from 9:00am on the third Saturday of the holiday period to 5:00pm the following Thursday in 2024/2025 and to 5:00pm the following Saturday from 2025/2026 onwards

(c) In the seventh/second last week of the holiday period, from 9:00am on the seventh Saturday of the holiday period to 5:00pm the following Thursday in 2025 and to 5:00pm the following Saturday from 2026 onwards.

And for the avoidance of doubt, Order 4 is suspended during the school holiday period and resumes where it left off in the following term. Where the last day of school term is different for either of the children, then the later of the two days is taken to be the last day of school.

SPECIAL OCCASIONS

7. Notwithstanding any order to the contrary, the children spend time with each parent during the following special occasions as follows:

Father’s/Mother’s Day

(a) with the mother for Mother’s Day from 7.30pm Mother’s Day Eve until the commencement of school Monday;

(b) with the father for Father’s Day from 7.30pm Father’s Day Eve until the commencement of school Monday.

Children’s Birthdays

(c) with the parent in whose care they will not be spending overnight on the night of the children’s birthday:

(i) if a school day, from the conclusion of school until 7.30pm; and

(ii) If a non-school day, from 9.30am until 2.30pm or as otherwise agreed between the parties in writing, and this overrides Order 7(b) concerning Father’s Day.

Parent’s Birthday

(d) with the mother on her birthday from conclusion of school (or 3.30pm if a non‑school day) until the commencement of school the following day (or 9.30am if a non-school day);

(e) with the father on his birthday from 3.30pm until 9.30am the following day;

Anzac Day

(f) with the father from after school (or 5.00pm if a non-school day) on the day before ANZAC Day until 3.00pm on ANZAC Day, unless otherwise agreed between the parties;

Christmas

(g) in even numbered years, with the father from 5.00pm on Christmas Eve until 5.00pm on Christmas Day and with the mother from 5.00pm on Christmas Day until 5.00pm on Boxing Day;

(h) in odd numbered years, with the mother from 5.00pm on Christmas Eve until 5.00pm on Christmas Day and with the father from 5.00pm on Christmas Day until 5.00pm on Boxing Day;

Father’s wedding

(i) from late 2024 until early 2025 for the purposes of the children attending the father’s wedding in City B, subject to Order 12 below.

CHANGEOVERS

8. Changeovers take place:

(a) at the children’s school on a school day;

(b) if a non-school day, the mother deliver the children to the father’s residence at the commencement of their time with him, and the father deliver the children to the mother’s residence at the conclusion of time.

COMMUNICATION WITH CHILDREN

9. Each party permit and facilitate the children when in their care to communicate with the other parent via Facetime or telephone at all reasonable times the children may request and provide the children privacy during such communication.

PASSPORTS AND OVERSEAS TRAVEL

10. Within 7 days of these Orders, the parties do all things necessary to cause the father to hold Y’s passport and the mother to hold X’s passport, when the children are not travelling overseas.

11. The parties do all things and sign all documents necessary to renew the children’s Australian passports as required, at their equal expense and each party will sign the passport application within 7 days of being provided with the relevant application form.

12. Each party be at liberty to take the children on a holiday outside the Commonwealth of Australia to countries or areas which are classified as Level 1 or Level 2 by the Australian Government Smarttraveller.gov.au during any period they have the care of the children pursuant to these orders or at any other time by written agreement, provided that the travelling party must provide to the non-travelling party:

(a) at least 42 days written notice of the proposed travel;

(b) at least 21 days prior to the proposed travel, a copy of the return airline ticket to Australia and an itinerary of the cities and towns the children will be staying at; and

(c) at least 14 days prior to the proposed travel, a copy of the travel insurance policy covering the children for the duration of such travel.

13. If a party’s time with the children as prescribed in these orders is suspended as a result of the other party travelling outside the Commonwealth of Australia then that party shall have make up time for the same period as the suspended period as agreed and failing agreement that make up time shall be taken from the other party’s time in the following school holiday periods as nominated in writing by the party whose time was suspended.

14. Upon compliance with Order 12 herein, the non-travelling party provide to the travelling party the child’s passport in their possession, no later than 7 days prior to the proposed travel and the travelling party return the passports to the non-travelling party within 7 days of their return to Australia.

15. In the event of one party’s non-compliance with Order 11, pursuant to s 11(1)(b)(i) of the Australia Passports Act 2005 (Cth) the requirements that the consent of the non‑complying party to the children’s passports being issued or replaced be dispensed with, and compliant party be able to solely renew or obtain the children’s passports.

COMMUNICATION BETWEEN PARENTS

16. The parents do all things to forthwith commence utilising the platform ‘AppClose’ to communicate regarding the children and these orders, unless otherwise agreed in writing.

CONTACT DETAILS

17. Each party provide to the other 21 days’ written notice of any proposed change of address.

18. Each party keep the other informed at all times of their contact telephone number and shall notify the other in respect to any change in writing within 2 days.

MEDICAL

19. Each party notify the other as soon as practicable of

(a) any illness or injury suffered by the children requiring medical or allied health treatment, together with the contact details of the medical or allied health practitioner; and

(b) any medical emergency, medical condition, significant health issue or significant illness suffered by either child.

20. Each party provide all authorities and give all necessary consents to authorise any medical or allied health practitioner upon whom the children attend to communicate with, and provide information and any reports regarding the children’s health, to the other parent.

21. Each party is at liberty to attend upon the children’s medical and allied health practitioners to discuss the children’s health.

22. Each party:

(a) facilitate the child X’s continued attendance upon Dr C, paediatrician (or such other paediatrician as recommended by Dr C); and

(b) administer any medication as prescribed by Dr C (or such other paediatrician as recommended by Dr C).

23. Each party have leave to provide a copy of these orders to Dr C, or any other paediatrician upon whom the children may attend.

EDUCATION

24. Each party provide all authorities and give all necessary consents to authorise the children’s schools to communicate with, and provide information and any reports, regarding the children’s education, to the other parent.

25. Each party is at liberty to attend at the children’s schools to discuss the children’s education and all school events and co-curricular events organised by the children’s schools, to which parents are invited.

EXTRA-CURRICULAR ACTIVITIES

26. Each party is at liberty to enrol the children in extra-curricular activities that occur during their periods of care of the children and keep the other party advised of the details.

27. Each party provide all authorities and give all necessary consents to authorise all extra-curricular providers to communicate with, and provide information and any reports regarding the children’s activities, to the other parent.

28. Each party is at liberty to attend to spectate any special extra-curricular events such as grand finals or end of year performances or concerts in which the children are participating, irrespective of whose care the children are in.

29. The parties do all acts and things reasonably necessary to ensure the children’s attendance at their existing extra-curricular activities, and any successor activities, during the time they are with that parent.

COUNSELLING/COURSES

30. The father do all things to engage with Dr D as soon as practicable on a fortnightly basis for at least six months and he:

(a) have leave to provide to such psychologist the following:

(i) a copy of these orders; and

(ii) the Family Report of Ms E dated 10 May 2024,

(b) notify the mother with whom he has commenced counselling and confirm he has complied with Order 30(a) herein; and

(c) provide to the mother a letter from the psychologist at the conclusion of his engagement, confirming the dates of his attendance and his compliance with Order 30 herein.

OTHER INJUNCTIONS

31. Each party, their servants and agents be restrained from denigrating the other parent or their family members or discussing these proceedings or the issues in these proceedings, within the presence or hearing of the children and shall remove the children from any place in which the other party is being denigrated by any other person.

32. All extant applications be otherwise 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.

Background

Background to the litigation

Clearly the children love each of the parents and wish to spend time with them. Notwithstanding these clear statements, the parties subjected themselves to a process of mutual psychological evisceration despite the persistent urging of the Court to avoid same. BACKGROUND The parties met in 2007 when they worked together. They commenced co-habitation in 2010 and moved into a rental property. The mother gives evidence that the relationship was unhappy, and this is corroborated by the father who says that he purchased a flat in 2011 and was intending to leave the relationship. In 2011, one of the father’s relatives was killed in an accident in Country H. In 2012, the mother advised the father that she was pregnant and both offered differing recollections as to the father’s reaction. The mother stated that the father exclaimed that “[his] life is over”[1] whereas the father recalls that he “pledged [his] life to [his] unborn son”[2] and the parties resolved to remain together. [1] Mother’s trial affidavit filed 8 April 2024 ‘Mother’s Affidavit’ at [9].[2] Father’s trial affidavit filed 20 March 2024 ‘Father’s Affidavit’ at [20]. In 2018 the father received a settlement from the Commonwealth government relating to the death of his relative. X was born in 2012 and the parties, again, offer widely different accounts of the events following the birth of X. The father deposes to being involved in the care duties of X with the mother having become hyper-vigilant and anxious during this time. The mother states that she was largely the primary carer of X and despite moments of love and care, the father was mostly apathetic in the care of X. The parties briefly separated in around June 2013, before reconciling and re-commencing their relationship. In 2013, the mother recalls an incident where after finishing maternity leave and returning to work in the middle of 2013, the mother provided a ‘run sheet’ to assist in the care of X, which allegedly caused the father to disparage the mother. Conversely, the father says that during this time he was constantly denigrated by the mother and that she was physically aggressive. In 2013, the parties moved to Brisbane together and a property was purchased in Suburb J. The father says that this was to allow the mother to be closer to her extended family, but that he had no family or friends in Brisbane. The mother wished to have another baby around this time and raised with the father the possibility of IVF treatment. The mother gives evidence that the father was against the treatment. The mother stated that the father then agreed to the treatment if the parties could return to Melbourne, which she was agreeable to. The father says that the return to Melbourne was due to the mother having received an opportunity for career advancement with the business she was employed at in the Melbourne office rather than any agreement. In any case, the parties did return to Melbourne in 2016 and Y was born thereafter. The mother alleges that during the pregnancy of Y the parties’ relationship significantly deteriorated and she informed the father of their separation by email on 5 November 2017. The mother states that the parties came to an agreement that they will live and co-parent under one roof and when it arises that the father developed a relationship with another person who he wished for the child to meet, he would then move, which is what she says occurred as his relationship with Ms F progressed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In making the order, the Court has regard to the expressions of good will that were present in the proceedings including the father’s acknowledgement in the course of his evidence of the mother’s skills as a parent. I also note the comment made on the mother’s instructions in the letter to Ms F which provided a sense of a wish to work cooperatively. Given that comment I assume that both parents will be able to parent in the best interests of their children and exercise joint parental responsibility for the children. CONCLUSION In making orders, the best interests of the children would be served by the children spending significant time with each parent, including during holidays, and to that end the orders proposed by the father in relation to spend time arrangement address the best interests of the children. It was put to Ms E by senior counsel for the mother that the children have a good relationship with the father notwithstanding the lack of overnight time with him and significant gaps in spending time with him in the three and a half years since separation. On that basis it was put that the limited time of four nights per fortnight with time spent on weekends is sufficient. Ms E disagreed and said that this was not sufficient time to maintain a relationship and that the children’s emotional and developmental needs were such that they needed to spend more time with the father and that the additional time would support the needs and wishes expressed by the children to spend more time with the father and their best interests. I agree with Ms E in that regard. Once these parents remove themselves from this ligation and give themselves and the other parent the opportunity to spend time with the children without the spectre of ongoing proceedings influencing conduct and making the children feel that they are the ‘meat in the sandwich’, then it will be better for the children and the parents. I do not agree with the proposals put by the mother that these children need a more extended period over which their time with the father increases. The father sought and Ms E recommended orders for the mother to immediately stop co‑sleeping with Y. In her oral evidence the mother said that she had taken steps to stop this happening but at the date of hearing she was continuing to co-sleep with the child. I accept the mother’s evidence that she intends to stop co-sleeping with the child.

Ratio Decidendi

Legal Principle Established

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