FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Martine & Carmona [2024] FedCFamC2F 800
File number: MLC 14800 of 2019 Judgment of: JUDGE BOYMAL Date of judgment: 27 June 2024 Catchwords: FAMILY LAW – Parenting – parental responsibility – live with – spend time arrangements between three parties – which school child shall attend Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 ss 4AB, 60B, 60CC, 60CA, 65C, 65DAA, 65D, 65H
Cases cited: Adamson & Adamson [2014] FamCAFC 232
Aldridge & Keaton (2009) FamCAFC 229
Carlson & Fluvium [2012] FamCA 32
Fox v Percy (2003) 214 CLR 118
Grella & Jamieson [2017] FamCAFC 21
Hall & Hall [1979] FamCA 73
Harman v Secretary of State for Home Department [1983] 1 AC 280
Isles & Nelissen [2022] FedCFamC1A 97
K v Z (1997) FLC 92-783
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
R and R (Children’s Wishes) [2000] FamCA 43
Division: Division 2 Family Law Number of paragraphs: 438 Date of hearing: 29-31 January 2024, 1-2 February 2024 and 9-10 May 2024 Place: Melbourne Counsel for the Applicant: Ms Devine Solicitor for the Applicant: Condello Lawyers Counsel for the First Respondent: Mr Korke Solicitor for the First Respondent: Ballarat Lawyers Second Respondent: In person Counsel for the Independent Children’s Lawyer Mr Kiernan Solicitor for the Independent Children’s Lawyer MMH Lawyers ORDERS
MLC 14800 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MARTINE
Applicant
AND: MS CARMONA
First Respondent
MR HOOPER
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
Parental Responsibility
2.Subject to order 3 herein, the first respondent Ms Carmona, and the second respondent Mr Hooper have equal shared parental responsibility for X born 2014.
3.For the purpose of order 2 herein, prior to any long term decision being made, save in the event of an emergency:
(a)Ms Carmona and Mr Hooper advise the applicant Ms Martine of the decision to be made and their views and proposal;
(b)within fourteen days thereafter Ms Martine advise Ms Carmona and Mr Hooper of her views and proposal;
(c)upon receipt of Ms Martine's views and proposal Ms Carmona and Mr Hooper shall give consideration to them; and
(d)thereafter, or if Ms Martine does not respond within the fourteen day period, Ms Carmona and Mr Hooper shall make the decision and immediately advise Ms Martine of the decision that has been made.
Living Arrangements
4.X live with Ms Carmona.
5.X attend B School for his primary school education unless otherwise agreed between the parties through the parental responsibility procedure.
Spend Time Arrangements During School Terms
6.X spend time with each of the parties during school terms:
(a)in week one with Ms Martine from the conclusion of school on Friday (or 4.00 pm if a non-school day) until 5.00 pm on Sunday commencing the first Friday after third term 2024…
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- Martine & Carmona [2024] FedCFamC2F 800
- Case
- [2024] FedCFamC2F 800
- Decision Date
CaseChat Overview and Summary
The court had to decide on several critical issues, including the allocation of parental responsibility, living arrangements, detailed spending time schedules during school terms and holidays, communication protocols, and travel arrangements both domestically and internationally. The court also needed to consider how to facilitate the best interests of the child while ensuring that all parties had a meaningful and structured role in his life.
The court ruled that both Ms Carmona and Mr Hooper would have equal shared parental responsibility for X. Living arrangements stipulated that X would live with Ms Carmona, while spending time with each parent was meticulously outlined. The schedules were designed to provide X with substantial and equitable time with each parent, including specific arrangements during school terms, holidays, and special occasions. Communication between X and the non-residential parents was also regulated to ensure regular contact, facilitated through electronic means and specific times set aside for calls. The court also addressed travel provisions, stipulating detailed requirements for both domestic and international travel, including notice periods and documentation. Additionally, the court set out comprehensive medical, educational, and extracurricular activity protocols to ensure consistency and cooperation among the parties.
In conclusion, the court's orders provided a structured and detailed framework for the parenting arrangements, aiming to balance the needs and rights of all parties involved while prioritising the best interests of X. The orders discharged all previous parenting arrangements and introduced new, specific guidelines to govern the interactions and responsibilities of Ms Martine, Ms Carmona, and Mr Hooper.
Orders
Orders of the court
MLC 14800 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MARTINE
Applicant
AND:
MS CARMONA
First Respondent
MR HOOPER
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS THAT:
1. All previous parenting orders be and are hereby discharged.
Parental Responsibility
2. Subject to order 3 herein, the first respondent Ms Carmona, and the second respondent Mr Hooper have equal shared parental responsibility for X born 2014.
3. For the purpose of order 2 herein, prior to any long term decision being made, save in the event of an emergency:
(a) Ms Carmona and Mr Hooper advise the applicant Ms Martine of the decision to be made and their views and proposal;
(b) within fourteen days thereafter Ms Martine advise Ms Carmona and Mr Hooper of her views and proposal;
(c) upon receipt of Ms Martine's views and proposal Ms Carmona and Mr Hooper shall give consideration to them; and
(d) thereafter, or if Ms Martine does not respond within the fourteen day period, Ms Carmona and Mr Hooper shall make the decision and immediately advise Ms Martine of the decision that has been made.
Living Arrangements
4. X live with Ms Carmona.
5. X attend B School for his primary school education unless otherwise agreed between the parties through the parental responsibility procedure.
Spend Time Arrangements During School Terms
6. X spend time with each of the parties during school terms:
(a) in week one with Ms Martine from the conclusion of school on Friday (or 4.00 pm if a non-school day) until 5.00 pm on Sunday commencing the first Friday after third term 2024 has started and each third weekend thereafter;
(b) in week two with Mr Hooper from the conclusion of school on Friday (or 4.00 pm if a non-school day) until 5.00 pm on Sunday commencing on the second Friday after third term 2024 has started and each third weekend thereafter; and
(c) in week three with Ms Carmona from the conclusion of school Friday (or 4.00 pm if a non-school day) until 5.00 pm on Sunday commencing on the third Friday after third term 2024 has started and each third weekend thereafter.
7. The time in order 6 herein is suspended during all school holiday periods and shall recommence on the first weekend after the new school term has commenced as if the school holiday period had not intervened.
Spend Time Arrangements During School Term Holidays
8. X spend time with the parties during school term holidays:
(a) during the second term and third term school holidays in 2024:
(i) with Ms Martine from the conclusion of school on the last day of the school term for a period of five nights;
(ii) thereafter with Mr Hooper for a period of five nights; and
(iii) thereafter the balance with Ms Carmona.
(b) in 2025 and each school term holidays thereafter:
(i) for the term one school holidays with Ms Martine for the first half and Mr Hooper for the second half;
(ii) for the term two school holidays with Mr Hooper for the first half and Ms Carmona for the second half;
(iii) for the term three school holidays with Ms Carmona for the first half and Ms Martine for the second half; and
(iv) at such further and other times and days as may be agreed between the party who seeks the change, the party requested to change and any other party who may be affected by the change.
9. For the avoidance of doubt:
(a) the school term holidays are deemed to commence on the last day of the school term and conclude at 12.00 noon on the day preceding the first day of the new school term when X shall be returned to the care of Ms Carmona;
(b) changeovers shall occur at 12.00 noon save for on the last day of school when changeover shall occur at the time school concludes; and
(c) if the school term holiday has an uneven number of days, X shall spend the extra day in the care of the party he is in for the first half of the school holiday period.
Spend Time Arrangements During the Long Summer Holidays
10. X spend time with the parties during the long summer holidays:
(a) during the 2024/2025 long summer holiday on a seven night rotating basis commencing with Ms Martine, then Mr Hooper, then Ms Carmona, then Ms Martine and the balance with Ms Carmona;
(b) during the 2025/2026 long summer holiday and each third year thereafter, with Ms Carmona for the first ten nights, Ms Martine for ten nights thereafter, and Mr Hooper for ten nights thereafter or such lesser period of time so that X is returned to Ms Carmona's care at 12.00 noon the day preceding the first day of the school year;
(c) during the 2026/2027 long summer holiday and each third year thereafter with Mr Hooper for the first ten nights, Ms Carmona for ten nights thereafter, and Ms Martine for ten nights thereafter or such lesser period of time so that X is returned to Ms Carmona's care at 12.00 noon the day prior to the commencement of the school year;
(d) during the 2027/2028 long summer holiday and each third year thereafter with Ms Martine for the first ten nights, Mr Hooper for ten nights thereafter and Ms Carmona for the balance; and
(e) at such further and other times and dates as may be agreed between the party who seeks the change, the party requested to change and any other party who may be affected by the change.
11. For the avoidance of doubt:
(a) the long summer holidays are deemed to commence at 12.00 noon on Boxing Day and conclude at 12.00 noon on the day preceding the start of the new school year; and
(b) changeovers shall occur at 12.00 noon.
Arrangements on Special Occasions
12. X spend time with the parties during Christmas:
(a) from 12.00 noon Christmas Eve until 12.00 noon Boxing Day with Ms Carmona in 2024 and each third year thereafter;
(b) from 12.00 noon Christmas Eve until 12.00 noon Boxing Day with Mr Hooper in 2025 and each third year thereafter; and
(c) from 12 noon Christmas Eve until 12 noon Boxing Day with Ms Martine in 2026 and each third year thereafter.
13. Notwithstanding any other spend time arrangements pursuant to these orders, X spend time:
(a) with Mr Hooper from the conclusion of school (or 4.00 pm if a non-school day) on the Friday preceding Father's Day until 5:00 pm Sunday;
(b) with Ms Carmona in 2025 and each alternate year thereafter from the conclusion of school (or 4.00 pm if a non-school day) on the Friday preceding Mother's Day until 5:00 pm Sunday; and
(c) with Ms Martine in 2026 and each alternate year thereafter from the conclusion of school (or 4.00 pm if a non-school day) on the Friday preceding Mother's Day until 5:00 pm Sunday.
14. X communicate with the parents with whom he is not in the care pursuant to these orders on his birthday, the parties' birthdays, Christmas Day, Easter Sunday and Mother's Day by video call initiated by the parent with whom X is not in the care to X's iPad/Tablet or such other electronic device as may be agreed in writing between the parent initiating the call and the parent in whose care X is on the special occasion.
Changeovers
15. All changeovers that coincide with X's attendance at school shall take place at school.
16. Changeovers which do not take place at X's school, including when Friday is a non‑school day during school terms, shall take place:
(a) between Ms Carmona and Ms Martine at Woolworths Suburb C in City D unless otherwise agreed in writing between them;
(b) between Ms Martine and Mr Hooper at Suburb E unless otherwise agreed in writing between them; and
(c) between Ms Carmona and Mr Hooper at Ms Carmona's home unless otherwise agreed in writing between them.
Communication
17. X communicate:
(a) with Ms Martine each Thursday between 6.30 pm and 7.00 pm;
(b) with Mr Hooper each Tuesday between 6.30 pm and 7.00 pm;
(c) with Ms Carmona when he is not in her care each Wednesday between 6.30 pm and 7.00 pm;
(d) with each party at X's request with the party he is in the care of to facilitate X initiating the communication; and
(e) at such further and other times as may be agreed in writing.
18. For the avoidance of doubt:
(a) the party communicating with X pursuant to order 17 herein shall initiate the call except for communications pursuant to order 17(d);
(b) the communication may be by video or telephone; and
(c) the call shall be initiated to X's iPad/Tablet or such other electronic device as may be agreed between the party initiating the call and the party in whose care X is at the time of the call.
19. The parties shall use Our Family Wizard for the purpose of all communication regarding X except in the case of an emergency.
20. Ms Carmona and Ms Martine shall not initiate more than two messages per week on Our Family Wizard unless in the case of an emergency.
Contact Details
21. Ms Carmona and Mr Hooper keep each party informed of their residential address and Ms Martine inform the other parties of her residential address at her discretion save in the event she relocates from her present geographical location in the Town F region.
22. Each party keep the other informed of their email address and telephone numbers including mobile numbers and provide the other with written notice of any change within 48 hours of such change.
Schooling and Extra-Curricular Activities
23. The extra-curricular activities in which X shall be engaged shall be agreed between the parties in writing and in default of agreement the procedure in order 3 herein shall apply.
24. Each party shall keep the other parties informed of all sporting, cultural, artistic, developmental, or other community and extra-curricular activities/events including but not limited to any associated concerts, competitions, training, or meetings whether arranged through X's schools or independently outside of school.
25. Each party is at liberty to, and this order provides the authority for same:
(a) receive copies of X's school newsletters, reports and photographs or the like at their own expense and be at liberty to receive all notices, reports and correspondence from any club or extra-curricular activity in which X is engaged;
(b) liaise directly with X's school, after school care and extra-curricular provider to obtain any necessary information;
(c) attend all events at X's school, after school and extra-curricular activity to which parents are ordinarily invited; and
(d) attend parent teacher interviews provided they attend separate interviews unless otherwise agreed in writing.
26. If the party/ies with whom X is not in the care of pursuant to these orders on the day of the event wishes to attend the event, they shall provide 24 hours' written notice to all other parties advising of their intention to attend the event.
Medical
27. Ms Carmona keep Ms Martine and Mr Hooper advised of the names and contact details of all medical practitioners and allied health practitioners upon whom X attends from time to time.
28. Ms Martine and Mr Hooper advise each other and Ms Carmona of the names and contact details of any medical practitioner and/or allied health practitioner upon whom X attends whilst in their care.
29. Each party:
(a) is at liberty to communicate with X's medical practitioners and allied health practitioners in relation to X at their own expense, and this order provides the authority for same;
(b) shall comply with all reasonable directions of X's medical practitioners and allied health practitioners; and
(c) shall administer all medication prescribed for X in strict accordance with the directions for administration.
30. Each party shall advise the other parties as soon as practicable of:
(a) any significant illness, accident or injury suffered by X whilst in their care;
(b) any significant medical or dental treatment provided to X whilst in their care; and
(c) any medication X is to take whilst he is in the care of another party, including the dosage, and such medication is to be provided to the party into whose care X is entering at changeover.
Restraints
31. Each party, their servants and agents, be and are hereby restrained by injunction from:
(a) denigrating the other parties, and/or the other parties' family members or partner while X is in their presence or hearing, and/or allowing X to remain in the presence or hearing of any third party who is denigrating the other parties or the other parties’ family or partner; and
(b) physically disciplining X or allowing any other person to do so.
Travel
32. The parties be at liberty to travel interstate with X during their scheduled time with him pursuant to these orders, or at such further and other times as may be agreed between the parties in writing, provided that the travelling party shall provide the other parties with a copy of the travel itinerary including evidence of return flights, accommodation details including address of such accommodation and contact details for the duration of the travel, no less than four (4) weeks prior to the intended travel date.
33. Order 16 (Airport Watch List order) of the orders made on 1 December 2021 be and is hereby discharged.
34. The Court requests that the Australian Federal Police remove the name of the child X born 2014 from the Airport Watch List at all points of international arrivals and departures in Australia.
35. As soon as practicable, the respondents serve a sealed copy of this order upon the Proper Officer of the Australian Federal Police at Melbourne who is requested and empowered to give operation to order 34 herein.
36. The parties be at liberty to travel internationally with X during their scheduled time with him pursuant to these orders, or at such further and other times as may be agreed in writing provided that:
(a) the country/ies to which X is travelling is a signatory to the Hague Convention on the Civil Aspects of International Children Abduction;
(b) the country/ies to which X is travelling is not listed as a "do not travel" on the Smart Traveller website;
(c) the travelling party provides the other parties with a copy of the travel itinerary including evidence of return flights, accommodation details including the address of such accommodation and contact details for the duration of the travel, no less than eight (8) weeks prior to the intended travel date;
(d) the travelling party provides to the other parties not less than two (2) weeks prior to departure, copies of certificates of travel insurance which include medical cover for X and the travelling party, which cover X and the travelling party for each relevant destination and duration of travel;
(e) if there are any changes to the itinerary then the travelling party provide that information to the parties forthwith; and
(f) the non-travelling parties be at liberty to communicate with X via telephone and/or videocall during the travel and the travelling party shall facilitate any reasonable request by X for such communication.
37. Within 14 days of the date of these orders Ms Carmona and Ms Martine do all acts and things and sign all documents as may be required to obtain an Australian passport for the child X born 2014.
38. Within seven days of the expiration or loss of X's passport Ms Carmona and Ms Martine shall do all acts and things to renew/apply for another Australian passport for X.
39. Should Ms Martine not comply with orders 37 and 38 herein, Ms Carmona be permitted to renew/apply for a passport for the child, X born 2014 without the permission of Ms Martine.
40. X's passport be held by Mr Hooper and Mr Hooper shall provide the passport to the travelling party at their request for the purpose of international travel and for obtaining any travel documents, with the passport to be returned to Mr Hooper within 14 days of X's return to Australia.
Miscellaneous
41. The parties be at liberty to provide a copy of these orders to any of X's schools, extra‑curricular providers and medical practitioners or allied health practitioners.
42. Ms Carmona and Ms Martine have leave to provide a copy of these orders and these reasons to the Magistrates' Court of Victoria in relation to any intervention order proceedings between them.
43. It is declared that pursuant to sections 68P and 68Q of the Family Law Act 1975 (Cth) these parenting orders prevail to the extent of any inconsistency with any intervention order between the parties.
44. It is requested that the Independent Children's Lawyer meet with X for the purpose of explaining these orders to him.
45. The appointment of the Independent Children's Lawyer be discharged upon completion of order 44 herein.
46. Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties to adjust to and comply with an order are set out herein and these particulars are included in these 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).
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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