FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kent & Kent [2023] FedCFamC2F 1509
File number(s): PAC 6659 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 23 November 2023 Catchwords: FAMILY LAW – PARENTING – Best interests of children – Orders made.
FAMILY LAW – PROPERTY – Just and equitable Orders made.
Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 75, 79 Cases cited: Lotta & Lotta [2017] FamCA 50
Saif & Saif [2020] FamCA 119
Division: Division 2 Family Law Number of paragraphs: 232 Date of hearing: 6–9 November 2023 Place: Parramatta Counsel for the Applicant: Ms Druitt Solicitor for the Applicant: Commisso & Associates Counsel for the Respondent: Ms Mahony Solicitor for the Respondent: Family Law Matters Counsel for the Independent Children's Lawyer: Ms Breeze Solicitor for the Independent Children's Lawyer: Laura K Law ORDERS
PAC 6659 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KENT
Applicant
AND: MR KENT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
23 NOVEMBER 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
PARENTING
Parental responsibility
1.The parties have equal shared parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2017 (“the children”) for all major long-term decisions.
2.The children live with the mother.
3.The children spend time with the father as agreed between the parties in writing and failing agreement as follows:
(a)From the making of these Orders, and continuing until the conclusion of 12 weeks thereafter:
(i)Each Wednesday from the conclusion of school or 3.00 pm to the commencement of school or 9.00 am on Thursday; and
(ii)In week 2 of every fortnightly period from after school Friday or 3.00pm until 7.00 pm on Saturday;
(b)From the conclusion of the 12 week period in Order 3(a) herein and continuing until the conclusion of 12 weeks thereafter:
(i)In week 1 of every fortnightly period from the conclusion of school or 3.00 pm on Wednesday to the commencement of school or 9.00 am on Thursday; and
(ii)In week 2 of every fortnightly period from the conclusion of school or 3.00 pm on Friday until 7.00 pm on Sunday;
(c)From the conclusion of the 12 week period in Order 3(b) herein and continuing thereafter:
(i)During school term times as follows:
A.In week 1 of every fortnightly period from the conclusion of school or 3.00 pm on Wednesday to the commencement of school or 9.00 am on Thursday;
B.In week 2 of every fortnightly period from the conclusion of school or 3.00 pm on Friday until the commencement of school or 9.00 am on Monday.
School holidays
4.From the date of these Orders until the conclusion of the time period in Order 3(b) above the school term time continues throughout all school holiday periods.
5.From the commencement of the time period in Order 3(c) herein during Term 1, 2 and 3 school holidays the children shall spend equal time with…
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CaseChat Overview and Summary
The court determined that the parties would share equal parental responsibility for the children’s major long-term decisions. The children would primarily reside with the mother, but the father would have a detailed visitation schedule, which gradually increased in duration over a period of 24 weeks. The court also established specific arrangements for school holiday periods, special events such as Easter and Christmas, and the children’s birthdays. The court emphasised the importance of maintaining communication between the parents and prohibited any denigration of one parent in front of the children. The court further outlined procedures for travel with the children, medical treatment, and the maintenance of passports. The property settlement involved the division of a term deposit, personal assets, and superannuation, with each party retaining their respective personal liabilities.
The court’s decision provided a comprehensive and structured arrangement aimed at ensuring the children’s welfare while addressing the parents’ property interests. The orders were designed to facilitate a stable and supportive environment for the children, with clear guidelines to minimise conflict between the parents. The final orders specified the division of assets and the responsibilities of each parent regarding the children’s care and upbringing.
Orders
Orders of the court
PAC 6659 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KENT
Applicant
AND:
MR KENT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
23 NOVEMBER 2023
ON A FINAL BASIS THE COURT ORDERS THAT:
PARENTING
Parental responsibility
1. The parties have equal shared parental responsibility for the children X born in 2013, Y born in 2015 and Z born in 2017 (“the children”) for all major long-term decisions.
2. The children live with the mother.
3. The children spend time with the father as agreed between the parties in writing and failing agreement as follows:
(a) From the making of these Orders, and continuing until the conclusion of 12 weeks thereafter:
(i) Each Wednesday from the conclusion of school or 3.00 pm to the commencement of school or 9.00 am on Thursday; and
(ii) In week 2 of every fortnightly period from after school Friday or 3.00pm until 7.00 pm on Saturday;
(b) From the conclusion of the 12 week period in Order 3(a) herein and continuing until the conclusion of 12 weeks thereafter:
(i) In week 1 of every fortnightly period from the conclusion of school or 3.00 pm on Wednesday to the commencement of school or 9.00 am on Thursday; and
(ii) In week 2 of every fortnightly period from the conclusion of school or 3.00 pm on Friday until 7.00 pm on Sunday;
(c) From the conclusion of the 12 week period in Order 3(b) herein and continuing thereafter:
(i) During school term times as follows:
A. In week 1 of every fortnightly period from the conclusion of school or 3.00 pm on Wednesday to the commencement of school or 9.00 am on Thursday;
B. In week 2 of every fortnightly period from the conclusion of school or 3.00 pm on Friday until the commencement of school or 9.00 am on Monday.
School holidays
4. From the date of these Orders until the conclusion of the time period in Order 3(b) above the school term time continues throughout all school holiday periods.
5. From the commencement of the time period in Order 3(c) herein during Term 1, 2 and 3 school holidays the children shall spend equal time with each parent as agreed between the parties in writing and failing agreement as follows:
(a) With the mother in week 1 in odd numbered years and in week 2 in even numbered years; and
(b) With the father in week 1 in even numbered years and in week 2 in odd numbered years.
6. During the 2024 Term 4 school holiday periods, the children shall spend one half of the Term 4 school holiday period with each parent as agreed between the parties in writing and failing agreement as follows:
(a) With the mother in weeks 2, 4 and 6;
(b) With the father in weeks 1, 3 and 5.
7. During the 2025 Term 4 school holiday period and all Term 4 school holiday periods thereafter, the children shall spend one half of the Term 4 school holiday period with each parent as agreed between the parties in writing and failing agreement as follows:
(a) With the mother for the first half of the Term 4 school holiday period commencing in even numbered years and the second half of the Term 4 school holiday period commencing in odd numbered years;
(b) With the father for the second half of the Term 4 school holiday period commencing in even numbered years and the first half of the Term 4 school holiday period commencing in odd numbered years.
8. For the purposes of Orders 5 to 7 herein, the Term 1, 2 and 3 school holidays and Term 4 Christmas school holidays are deemed to commence at the conclusion of school or 3.00 pm on the last day the children are required to attend school and changeovers shall occur at 3.00 pm on the middle day of the holidays.
Occasions and events of special significance
Easter
9. If the Easter long weekend takes place during a school holiday period, the children will spend time with the parent that does not otherwise have the care of the children on Easter Sunday for 4 hours as agreed and, failing agreement, between midday and 7.00pm.
10. If the Easter long weekend does not take place during a school holiday period, then the children will spend time with the parents as follows:
(a) From the conclusion of school on Easter Thursday until 7.00 pm on Easter Saturday in 2024 and each alternate year thereafter with the mother;
(b) From 7.00 pm on Easter Saturday until 7.00 pm Easter Monday in 2024 and each alternate year thereafter with the father;
(c) From the conclusion of school on Easter Thursday until 7.00 pm on Easter Saturday in 2025 and each alternate year thereafter with the father; and
(d) From 7.00 pm on Easter Saturday until 7.00 pm Easter Monday in 2025 and each year thereafter with the mother.
Christmas
11. During the Christmas period the children will spend time with the parents as agreed between the parties in writing and failing agreement as follows:
(a) In even numbered years:
(i) With the father from 7.00 pm on Christmas Eve until 2.30 pm on Christmas Day;
(ii) With the mother from 2.30 pm on Christmas Day until 7.00 pm on Boxing Day.
(b) In odd numbered years commencing 2025:
(i) With the mother from 7.00 pm on Christmas Eve until 2.30 pm on Christmas Day;
(ii) With the father from 2.30 pm on Christmas Day until 7.00pm on Boxing Day.
Children’s birthdays
12. On each of the children’s birthdays the parent who would not otherwise have care of the children shall spend time with the children for 4 hours that 4 hour period to be agreed in writing between the parents and failing agreement from 3.00 pm to 7.00 pm.
Father’s Day and Mother’s Day
13. If the children are not otherwise spending time with the father on Father’s Day in accordance with these Orders, the children shall spend time with the father from 9.00am to 7.00 pm on Father’s Day;
14. If the children are not otherwise spending time with the mother on Mother’s Day in accordance with these Orders, the children shall spend time with the mother from 9.00 am to 7.00 pm on Mother’s Day;
Parents’ birthdays
15. Should the parent’s birthdays occur on days when the children would not otherwise be spending time with them then:
(a) The children will spend time with the mother on the occasion of the mother’s birthday:
(i) From 3.00 pm until 9.00 pm if a school day;
(ii) From 9.00 am to 7.00 pm if the mother’s birthday falls on a weekend.
Changeovers
16. Changeovers shall occur as follows:
(a) On a school day, changeover shall occur by the parent whose time is to conclude delivering the children to school;
(b) On a non-school day or in the case of a child not attending school for reasons of illness then the parent whose time is to conclude shall deliver the children to the residence of the parent whose time is to commence.
(c) For the purposes of Orders 16(a) and 16(b) herein, “parent” includes the parent or their nominee.
(d) Where a parent intends to effect changeover for the purposes of Order 16(b) herein through their nominee the parent shall notify the other parent in writing of the nominee not less than 1 hour prior to the changeover.
Communication
17. The parties shall communicate via a communications app such as Our Family Wizard save and except in cases of medical emergency when the parties shall be at liberty to communicate by text or voice call.
Ancillary
18. Each parent is at liberty to attend all events involving the children, including but not limited to extra-curriculars, school events, and volunteer roles at school.
19. Each parent is at liberty to receive reports, copies of any correspondence, newsletters or other written material produced by the school and distributed to parent, discuss with the children’s school about the children’s attendance and progress, and attend and fully participate in all and any activities at the school or connected with the school.
20. Each parent is restrained from denigrating or criticising the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.
21. The parents shall advise the other parent and keep the other parent advised of their current contact telephone numbers (including both landline and mobile phone number if applicable), email address and residential address and advise the other parent of any changes to these details within seven days of such change occurring.
Travel
22. Each parent is at liberty to travel outside the Commonwealth of Australia with the children provided that:
(a) The travel occurs during their time with the children pursuant to these Orders;
(b) Written notice of the intended travel is provided to the other parent no less than 28 days prior to the intended travel;
(c) A detailed travel itinerary is provided to the other parent no less than 7 days prior to the intended travel including:
(i) Flight or ship outbound and inbound details including flight or ship number, departure and arrival times and dates;
(ii) Accommodation details;
(iii) Confirmation of travel insurance certificates for the travelling parent and the children for the duration of the travel.
Passports
23. Both parties shall do all things necessary to ensure that the children are issued with a current Australian passport at all times with at least 6 months’ validity.
24. The mother shall:
(a) Hold all passports issued to the children in safe keeping;
(b) Provide to the father a photocopy of the details of each passport including any updated details as the passports reissue.
25. In the event that the father notifies the mother of intended travel pursuant to Order 22(b) herein the mother shall forthwith and not less than 48 hours following receipt of said notification pass the passports to the father for safekeeping.
26. The father shall return the children’s passports to the mother for safekeeping no later than 7 days upon returning to Australia.
Medical treatment
27. Each parent is to keep the other informed as soon as practicable of any significant medical problems, illness or injury suffered by the children while in their care.
28. The mother shall provide to the father the details of the children’s current GP for the children and in the event of a change in GP, shall provide the new details within seven (7) days of their first appointment.
29. Notwithstanding Order 2 herein, both parties are at liberty to:
(a) Attend with the children at any health appointment which occurs during the time the children are in their care;
(b) Have access to copies any correspondence, report or other communication from a treating health practitioner which would normally be provided to a responsible parent of a minor.
Non-denigration and restraints
30. Both parties are hereby restrained by injunction from denigrating the other party or members of the other party’s family in the presence and/or hearing of the children or allowing the children to remain in the presence and/or hearing of any third party who so does.
Independent Children’s Lawyer
31. The Independent Children’s Lawyer (ICL) is directed to speak to the children face to face to explain the above Orders to them, in particular the Orders relating to them spending time with the father. The ICL shall endeavour to speak to the children in this regard before they are next due to spend time with the father under these Orders.
PROPERTY
32. From the B Bank Term Deposit in the parties’ names, the wife shall be paid the sum of $645,016, and the husband shall be paid the sum of $193,444, and the parties shall forthwith take all necessary steps and sign all necessary documents to enable such payments to be made.
33. Save as is otherwise provided in these Orders, the wife is declared the sole owner both at law and in equity of:
(a) Her cash in bank;
(b) Her superannuation entitlements;
(c) Any chattels, goods, furnishings and other property which are in her possession or control; and
(d) All other property of whatsoever kind or nature presently in her possession or control.
34. Save as is otherwise provided in these Orders, the husband is declared the sole owner both at law and in equity of:
(a) His cash in bank;
(b) His motor vehicle;
(c) His interest in C Company;
(d) His superannuation entitlements.
35. Each party will otherwise retain any other personal liabilities, credit cards, loans or debts in their name and will indemnify the other parties in relation thereto.
36. That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument.
37. Liberty to the parties to seek to relist the proceedings on 7 days’ notice in the event of any difficulty in implementing or facilitating the above Orders.
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.
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Evidence Before The Court
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Reasons for decision
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Legal Principle Established
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