FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kesselman & Brimble [2025] FedCFamC1F 1
File number(s): SYC 8044 of 2021 Judgment of: BOYLE J Date of judgment: 24 January 2025 Catchwords: FAMILY LAW – PARENTING – Where children live with the mother and spend time with the father – Where father seeks an equal time week about arrangement by 2030 – Where the children’s needs are complex and require a multidisciplinary support system – Where the court finds it is in the children’s best interests for them to reside with the mother and spend time with the father – Where the father seeks that the parties have shared decision making authority and the mother seeks sole parental responsibility and decision making authority for the children – Where the court finds that the father had perpetrated family violence against the mother – Where the mother suffers from PTSD and anxiety – Where orders are made for the mother to have sole parental responsibility and decision making authority for the children. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2A), 61D(3). Cases cited: Isles & Nelissen (2022) FLC 94-042
M v M (1988) 166 CLR 69; [1988] HCA 68
Pickford & Pickford [2024] FedCFamC1A 249
Division: Division 1 First Instance Number of paragraphs: 147 Date of hearing: 15-17 October 2024 Place: Sydney Counsel for the Applicant: Ms Clifford Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Hodgson Solicitor for the Respondent: O’Sullivan Legal ORDERS
SYC 8044 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KESSELMAN
Applicant
AND: MR BRIMBLE
Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
24 JANUARY 2025
THE COURT NOTES THAT:
A.The following definitions apply for the purpose of these Orders:
a."X" means the parties' child X born 2015.
b."Y" means the parents' child Y born 2017.
c."children" means X and Y.
d."child" means X and/or Y.
e."Father" means Mr Brimble born 1975.
f."Mother" means Ms Kesselman born 1978.
g."parent" means either the Father and/or the Mother.
h."parents" means the Father and the Mother.
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Decision making
2.The Mother shall have parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) affecting the children.
3.For the purpose of exercising parental responsibility for the children and sole decision‑making authority in respect of all decisions concerning major long-term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) affecting the children, the Mother shall:
(a)Inform the Father in writing of the decision to be made;
(b)Invite written comments from the Father which the Father shall provide within 7 days unless otherwise agreed between the parties in writing;
(c)Take such comments into account when making the decision; and
(d)Inform the Father in writing of the decision.
Time during the school term
4.The…
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- [2025] FedCFamC1F 1
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CaseChat Overview and Summary
The court found it was in the children’s best interests for them to reside with the mother and spend time with the father. The father had perpetrated family violence against the mother, who suffered from PTSD and anxiety. Given these circumstances, the court decided that the mother should have sole parental responsibility and decision-making authority for the children. The court emphasized the importance of the mother not being put in situations where she had to deal with the father face-to-face due to the severe impact on her well-being. The court also outlined specific time arrangements for the children to spend time with their father during school terms and holidays, and provided detailed orders for communication, medical appointments, and other significant matters to ensure the children's needs were met while safeguarding the mother's well-being.
Orders
Orders of the court
SYC 8044 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS KESSELMAN
Applicant
AND:
MR BRIMBLE
Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
24 JANUARY 2025
THE COURT NOTES THAT:
A. The following definitions apply for the purpose of these Orders:
a. "X" means the parties' child X born 2015.
b. "Y" means the parents' child Y born 2017.
c. "children" means X and Y.
d. "child" means X and/or Y.
e. "Father" means Mr Brimble born 1975.
f. "Mother" means Ms Kesselman born 1978.
g. "parent" means either the Father and/or the Mother.
h. "parents" means the Father and the Mother.
ON A FINAL BASIS THE COURT ORDERS THAT:
1. All previous parenting orders are discharged.
Decision making
2. The Mother shall have parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) affecting the children.
3. For the purpose of exercising parental responsibility for the children and sole decision‑making authority in respect of all decisions concerning major long-term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) affecting the children, the Mother shall:
(a) Inform the Father in writing of the decision to be made;
(b) Invite written comments from the Father which the Father shall provide within 7 days unless otherwise agreed between the parties in writing;
(c) Take such comments into account when making the decision; and
(d) Inform the Father in writing of the decision.
Time during the school term
4. The children shall live with the Mother and spend time with the Father during school terms as agreed in writing and failing agreement, from after school each alternate Thursday (or 3:00pm if Thursday is a non-school day) until before school the following Monday (or 9:00am if Monday is a non-school day).
Time during the current summer school holidays
5. That Orders 3.8 to 3.10 of the Consent Orders made on 25 May 2022 by Judicial Registrar Turner remain in place until the beginning of the 2025 school year, subject to the children returning to the Mother from 9:00am on the day prior to the first day of the new school term.
Time during the summer school holidays until 2027
6. That the children shall spend time with the parents during the summer school holidays, as agreed in writing and failing agreement as follows, with changeover to occur at 3:00pm:
(a) With the Mother for the first week of the summer school holidays in even numbered years and each alternate week thereafter, and with the Mother for the second week of the summer school holidays in odd numbered years and each alternate week thereafter;
(b) With the Father for the second week of the summer school holidays in even numbered years and each alternate week thereafter and with the Father for the first week of the summer school holidays in odd numbered years and each alternate week thereafter;
(c) The time pursuant to Order 6(a) and 6(b) be suspended from 9:00am on the day prior to the first day of school for next school term, with the children to live with the Mother from 9:00am on the day prior to the first day of the new school term until the commencement of school, notwithstanding any other order.
Time during the summer school holidays from 2027
7. That the children shall spend time with the parents during the summer school holidays commencing in odd numbered years and each alternate year thereafter, as agreed in writing and failing agreement as follows with changeover to occur at 3:00pm:
(a) With the Father for the first week of the summer school holidays;
(b) With the Mother for the second week of the summer school holidays;
(c) With the Father for the third week and fourth week of the summer school holidays;
(d) With the Mother for the fifth and sixth week of the summer school holidays;
(e) In the event there are any days remaining in the school holidays following the time at Order 7(d), the children spend that time with the Father subject to Order 7(f).
(f) The time pursuant to Order 7(a) to 7(e) be suspended from 9:00am on the day prior to the first day of school for next school term, with the children to spend time with the Mother from 9:00am on the day prior to the first day of the new school term until the commencement of school, notwithstanding any other order.
Time during the summer school holidays from 2028
8. That the children shall spend time with the parents during the summer school holidays commencing in even numbered years and each alternate year thereafter, as agreed in writing and failing agreement as follows with changeover to occur at 3:00pm:
(a) With the Mother for the first week of the summer school holidays;
(b) With the Father for the second week of the summer school holidays;
(c) With the Mother for the third week and fourth week of the summer school holidays;
(d) With the Father for the fifth and sixth week of the summer school holidays;
(e) In the event there are any days remaining in the school holidays following the time at Order 8(d), the children spend that time with the Mother.
(f) The time pursuant to Order 8(a) to 8(e) be suspended from 9:00am on the day prior to the first day of school for the new school term, with the children to spend time with the Mother from 9:00am on the day prior to the first day of the new school term until the commencement of school, notwithstanding any other order.
Communication
9. Unless otherwise agreed between the parents in writing and during the school term, the Father shall have video call communication with the children each Sunday that the children are not in his care at 6:30pm, with the call to be concluded before 7.00pm, and for the purpose of this Order the Father shall initiate the call and the Mother shall cause the call to be answered and shall facilitate such video call communication occurring uninterrupted.
Medical appointments
10. The Mother shall solely attend all paediatrician and specialist appointments for the children, and if requested by the Father in writing at least 48 hours prior to the appointment commencing, the Mother shall telephone the Father during such appointments to enable him to participate in such appointments via telephone.
Restraints
11. Both parents are restrained from using physical discipline or chastisement on the children or either of them. IT IS NOTED that this does not prevent the parties utilising recommended strategies like 'deep hugs' or other reasonable physical techniques to calm the children if the children are in a state of emotional dysregulation.
Communication of Medical, Educational and Other significant information
12. Unless otherwise agreed between the parents in writing, all communications between the parents (other than in person communications) shall occur via the “Our Family Wizard” application (or such other parenting app as agreed between the parents in writing), except in the case of an emergency or regarding an urgent issue concerning the welfare or immediate changeover of the children, in which case the communication shall occur via telephone or text.
13. Both parents shall do all things and pay any monies necessary to ensure that they have access to the 'Our Family Wizard' app or any other such parenting app as agreed between the parents in writing.
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
Children's treaters
14. Unless otherwise agreed between the parents in writing, the parents shall do all things and sign all documents necessary to ensure that the children receive all non-emergency treatment for the below purposes from the following practitioners and not alternate practitioners:
(a) General Practitioner: Dr B (or other doctors at C Medical Centre if Dr B is not available);
(b) Paediatrician: Dr D;
(c) Dentist: Dr E (or other dentists at F Dental Clinic if Dr E is not available);
(d) Counsellor/social worker: Ms G, Ms H or such other practitioner at J Services as allocated/recommended for the children/parents for the period the children/parties are eligible to utilise J Services' services; and
(e) Psychologist: Dr K (or other psychologists at L Psychology if Dr K is not available (or suitable)).
School holidays
15. For-the purpose of these Orders, school holiday periods are defined to commence and conclude as follows, based on the school term and holiday dates applying to students at the school that X attends. Once X completes his schooling, these Orders shall apply to the school term and holiday dates applying to students at the school that Y attends:
(a) The first day of each school holiday period shall commence at the conclusion of school on the last day of each school term that students are required to attend school;
(b) The last day of each school holiday period shall be the commencement of school on the first day of each new school term that students are required to attend school;
(c) Unless otherwise specified, changeover half way through each school holiday period shall occur at 3:00pm on that day which is half way between the first day and the last day of each school holiday period calculated by nights, and in the event there are two middle days, changeover shall occur at 3:00pm on the first of those two middle days.
Term 1, 2 and 3 school holidays
16. The term time arrangements are suspended during the term 1, 2 and 3 school holiday periods (as defined by Order 15 above) and the children will spend time with the parents during the term 1, 2 and 3 school holiday periods as agreed in writing and failing agreement as follows with changeover to occur at 3:00pm:
(a) With the Father for the first half of all school holiday periods which commence at the conclusion of Terms 1, 2 and 3;
(b) With the Mother for the second half of all school holiday periods which commence at the conclusion of Terms 1, 2 and 3.
Changeover
17. That unless otherwise agreed between the parents in writing, for the purpose of changeover that does not take place at the children's school (or via the children transporting themselves home from school via public transport or other means), the Mother or her nominee shall deliver the children to the Father's residence at the commencement of his time with the children, and the Father or his nominee will deliver the children to the Mother's residence at the conclusion of his time with the children.
18. The parents are each restrained from approaching the other parent's residence without prior written consent from that other parent, unless for the purposes of changeover pursuant to these orders or as otherwise agreed between the parties in writing.
Communication During School Holidays
19. Unless otherwise agreed between the parents in writing and until 31 January 2028, during the school holiday periods the parent whom the children are not living or spending time with shall be provided with video call communication with the children each Wednesday at 6:30pm, with the calls to be concluded before 7.00pm, and for the purpose of this Order the parent who is not spending time with the children shall initiate the call, and the other parent shall cause the call to be answered and shall facilitate such video call communication occurring uninterrupted.
Special Occasions
20. That notwithstanding any other order, the children shall spend time with the parents on the following special occasions as follows:
Mother's and Father's Day
(a) The children shall spend time with the Father on Father's Day, from 9:00am to 3:00pm if not already in his care.
(b) The children shall spend time with the Mother on Mother's Day, from 9:00am to 3:00pm if not already in her care.
Birthdays
(c) On either of the children's birthdays, the children will spend time with the parent in whose care they would not otherwise be in from after school (or 3:00pm) until 7:00pm if the birthday falls on a school day, or from 9:00am to 3:00pm if the birthday falls on a weekend.
(d) On the Father's Birthday, the children will spend time with the Father if not already in his care from after school (or 3:00pm) until 7:00pm if the Father's birthday falls on a school day, or from 9:00am to 3:00pm if the Father's birthday falls on a weekend or during the school holidays.
(e) On the Mother's Birthday, the children will spend time with the Mother if not already in her care from after school (or 3:00pm) until 7:00pm if the Mother's birthday falls on a school day, or from 9:00am to 3:00pm if the Mother's birthday falls on a weekend or during the school holidays.
Passports
21. Within 7 days of either parent issuing a written request to the other for the children's (or either of the children) passports to be obtained/renewed (including Australian, Country M and/or Country N passports), both parents shall do all things, and sign all documents necessary to cause such passports to be obtained/renewed for the children (or either of the children) with the parents to equally pay any monies necessary to obtain/renew the children's passports.
Interstate Travel
22. That each parent be permitted to travel interstate with the children during any period the children are spending time with them pursuant to these Orders, provided that if the children are spending overnight time interstate the parent proposing to travel gives the other parent written notice of the travel and the name of the suburb where the children will be staying, not more than 24 hours after any bookings (flight or accommodation) are made or not less than 24 hours prior to the children's departure from New South Wales whichever occurs sooner, unless otherwise agreed between the parents in writing.
Removal of children's names from the airport watchlist
23. That Order 8 of the Orders made by the Federal Circuit and Family Court of Australia (Division 2) on 20 December 2021, which placed the children's names on the airport watchlist be discharged and it is requested that the Australian Federal Police remove the names of the children X born 2015 and Y born 2017 from the Family Law airport watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
24. That forthwith the children's names be removed from the airport watchlist and the parents do all thing and sign all documents necessary to give effect to this order.
Passports
25. All of the children's passports are to be held by the Mother when the children are not traveling.
26. Subject to the conditions of these Orders as they apply to international travel being met, the Mother is to provide the children's passports to the Father within 7 days of any intended international travel by the children, and the Father shall return the children's passports to the Mother at the first changeover of the children (being the first time the children go into the Mother's care) following the children's return to the Commonwealth of Australia following any international travel.
International Travel
27. Unless otherwise agreed and subject to Order 28 below, each parent is entitled to remove the children from Australia during their time with the children pursuant to these Orders, subject to the travelling parent not less than 28 days prior to the scheduled travel, providing the non-travelling parent with the following in writing:
(a) The dates and method of travel (including flight and ship number, departure and arrival times);
(b) An itinerary showing all destinations;
(c) The details of the accommodation/s where the children will be residing including address and telephone number/s or the video call medium via which the children will be contactable on whilst travelling;
28. The parents are restrained from taking the children to any destination(s) that smartraveller.gov.au (or similar Australian Government body) has assigned a Level 3 (Reconsider your need to travel) or Level 4 (Do not travel) advice warning, unless with both parents written consent.
Communication of Medical, Educational and Other significant information
29. The parents have leave to provide the children's school/s with a copy of these Orders, and for this purpose, each parent is to copy the other parent into any correspondence they send to the children's school enclosing these Orders.
30. The parents have leave to provide Services Australia with a copy of these Orders.
31. The parents have leave to provide the children's specialist treaters with a copy of these orders, and for this purpose, each parent is to copy the other parent into any correspondence they send to the children's specialist treaters enclosing these Orders.
32. The Mother has leave to provide a copy of Dr O's report dated 16 May 2024 (attached to Dr O's Affidavit filed 29 May 2024) to her treating psychologist, Ms P.
33. Both parents will ensure they administer any medications, supplements or vitamins to the children, as prescribed or recommended by the children's medical professionals.
34. The parents shall telephone or text each other in relation to any urgent welfare/medical issues concerning the children as soon as practical.
35. Both parents shall be at liberty to visit the children should the children be admitted to hospital.
36. The parents are restrained from discussing these proceedings with the children or in the presence or hearing of the children, or from showing the children any material filed in these proceedings, and shall use their best endeavours to remove the children from the presence or hearing of any third party who is engaged in discussing these proceedings with the children or in the presence or hearing of the children, or showing the children any material filed in these proceedings
37. Both parents are restrained from denigrating the other parent or any member of the other parent's family to the children, or in the presence or hearing of the children, or by way of written or electronic communication or social media, and shall use their best endeavours to remove the children from the presence or hearing of any third party who is engaged in denigrating the other parent or any member of the other parents family.
38. Each parent shall keep the other informed of their current residential address, and mobile telephone numbers and any available email addresses and advise the other parent of any change thereto within 2 days of such change.
39. Each parent shall authorise and direct the children's school and extracurricular/sporting bodies to provide notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress to both parents.
40. Each of the parents shall authorise and direct any medical practitioner, psychologist, counsellor or therapist who has consulted with or treated the children to provide both parents with any and all information concerning the children.
41. Each of the parents shall ensure the other is kept informed of:
(a) Any significant medical problems, injury or illness suffered by the children, whilst in their care and any treating doctors consulted, with such notification to occur within 24 hours of such details being made available to one of the parents;
(b) Any medication that has been prescribed for the children and all details of the prescriptions and dosages to be administered to the children with such notification to occur within 24 hours; and,
(c) Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children and such notification to be provided within 48 hours of any such appointments being made.
42. Each parent is permitted to attend any of the children's school or extracurricular events to which parents are ordinarily invited to attend, however the parties are each restrained from approaching the other party at such events where reasonably practicable.
43. Both parties shall maintain current certifications in CPR and shall attend any necessary training courses or programs to ensure their certifications remain valid until both boys are medically cleared of a medical condition or have been episode-free without medication for a period of two years, whichever occurs first.
THE COURT FURTHER NOTES THAT:
B. The children hold passports or are eligible for passports for 3 nationalities Australian, Country M and Country N.
C. The time the children spend with the Father during the school term pursuant to Order 4, shall commence on the second Thursday after school recommences at the start of every new school term.
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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