FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mather & Vincent [2025] FedCFamC2F 425
File number(s): CRC 313 of 2023 Judgment of: JUDGE TAGLIERI Date of judgment: 4 April 2025 Catchwords: FAMILY LAW – Parenting application – with which parent the children live – where mother lives in New South Wales and father lives in Tasmania – consideration of the children’s best interests in s 60CC of the Family Law Act 1975 (Cth) – weight to be given to children’s views – promotion of the children’s Aboriginal identity and culture – finding of family violence during relationship and around separation by the father – balance of relevant considerations including “stability” weighing in favour of children remaining in the primary care of the father – orders for the children to spend time with the mother in New South Wales and Tasmania Legislation: Family Law Act 1975 (Cth) sch 1 pts 1 and 2, ss 4AB, 60B, 60CA, 60CC(3), 60CC(3), 60CC(3)(a), 60CC(3)(a)(i), 60CC(3)(a)(ii), 60CC(3)(a)(iii), 60CC(3)(h), 60CG
Family Law Amendment Act 2023 (Cth)
Evidence Act 1995 (Cth) s 144
Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth)
United Nations Convention on the Rights of the Child
Cases cited: A & A: Relocation Approach (2000) FLC 93-035
Aldridge & Keaton (2009) 235 FLR 450
B & B: Family Law Reform Act 1995 (1997) FLC 92-755
Bondelmonte v Bondelmonte [2017] HCA 8
Cooper Brookes (Woolongong) Pty Ltd v Federal Commissioner of Taxation [1981] 147 DLR 297
Davis & Spring [2007] FamCA 1149
Gareth & Naylor [2019] FamCA 561
Hepburn & Noble [2010] FamCAFC 111
Hort & Verran [2009] FamCAFC 214
In the Marriage of Boman (1981) 7 Fam LR 586
Isles & Nelissen [2021] FedCFamC1F 295
Isles & Nelissen [2022] FedCFamC1A 97
Mitchell v Mitchell (1983) 9 Fam LR 267
MRR & GR [2010] HCA 4
Pickford & Pickford [2024] FedCFamC1A 249
Project Blue Sky Inc v Australian Broadcasting Authority [1998] 194 CLR 355
Sheldon & Weir (2011) FamCAFC 212
Star & Duggan [2009] FamCAFC 115
Taylor & Barker [2007] FamCA 1246
Australasian Institute of Judicial Administration, National Domestic Violence Bench Book (2024)
Bugmy Bar Book Project Committee, Cultural Dispossession Experienced by Aboriginal and Torres Strait Islander Peoples (Updated February 2025)
Judicial Commission of New South Wales, Equality before the Law Bench Book (October 2023)
National Health and Medical Research Council,
Australian Guidelines to Reduce the Health Risks from Drinking Alcohol (2020)Division: Division 2 Family Law Number of paragraphs: 115 Date of last submission/s: 21 January 2025 Date of hearing: 11-13 December 2024 Place: Hobart Counsel for the Applicant: Ms Ryan Solicitor for the Applicant: Beneke Legal Solicitor for the Respondent: Ms McConnon, Tasmanian Aboriginal Legal Service Counsel for the Independent Children’s Lawyer: Mr McKenna The Independent Children's Lawyer: Wallace Wilkinson & Webster ORDERS
CRC 313 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MATHER
Applicant
AND: MR VINCENT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
4 APRIL 2025
THE COURT ORDERS THAT:
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CaseChat Overview and Summary
The court considered section 60CC of the Family Law Act 1975 (Cth) and found that the children’s best interests were to be promoted by them remaining in the primary care of Mr Vincent. The court gave significant weight to the children’s views, which were to remain with their father, and also found that the father’s proposal to promote the children’s Aboriginal identity and culture was in their best interests. The court found that the mother’s allegation of family violence was not substantiated, and that the father’s evidence of family violence around the time of separation was credible. The court found that the father’s evidence that the children had a strong attachment to him and their home and routine was also in their best interests. The court found that the balance of relevant considerations, including the children’s stability, weighed in favour of the children remaining in the primary care of Mr Vincent. The court also found that the children spending time with Ms Mather in New South Wales and Tasmania was in their best interests.
Orders
Orders of the court
CRC 313 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS MATHER
Applicant
AND:
MR VINCENT
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TAGLIERI
DATE OF ORDER:
4 APRIL 2025
THE COURT ORDERS THAT:
Previous Parenting Orders
1. All previous parenting orders in respect of the children X born in 2012 and Y born in 2014 (“the Children”) are discharged.
Decision Making
2. The Applicant Mother MS MATHER (“the Mother”) and the Respondent Father MR VINCENT (“the Father”) (collectively “the Parents”) have joint decision-making responsibility for all decisions concerning major long term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) affecting the Children AND when making these decisions:
(a) The parent who intends to make a major long-term decision in relation to either or both of the Children must provide the other parent twenty eight (28) days written notice of the intended decision (“Notice”);
(b) The parent receiving the Notice will consider the Notice and provide their views to the other parent about the intended decision within fourteen (14) days of Notice (“Other Parent’s Views”);
(c) Upon receipt of the Other Parent’s Views, the parent who gave Notice will consider the Other Parent’s Views
(d) If the Parents are in agreement about the intended decision they will implement that agreement; and
(e) If the Parents do not agree about the intended decision they will participate in family dispute resolution unless exempted from doing so.
The Children’s Living Arrangement
3. The Children will live with Father.
4. The Children will spend time with Mother as follows, noting that at the end of each specified time period the Children will resume living with Father in accordance with Order 3 of these Orders:
(a) At her election, providing she gives at least four (4) weekends’ prior notice to the Father and that it does not occur on the Father’s Day weekend, for one (1) weekend in each school term in Tasmania, from after school on Friday until the commencement of school on Monday (or 6:00pm on Monday if Monday is a non-school day);
(b) During the Tasmanian Gazetted Term 1, 2 and 3 school holiday periods from the second day of the school holidays until the last Wednesday of the school holiday period in New South Wales;
(c) During the Term 4 (Christmas) school holiday period in New South Wales:
(i) In odd numbered years, from the second day of the school holiday period for three (3) weeks of the school holiday period;
(ii) In even numbered years, from 28 December to two clear days prior to commencement of the first term of school of the following year;
(d) At her election, providing she gives at least four (4) weekends’ prior notice to the Father, additional time in either New South Wales or Tasmania on the Mother’s Day weekend; and
(e) At other times agreed in writing between the Parents.
Changeover and cost of travel
5. Changeover of care be facilitated by the Parents as agreed in writing, and failing agreement:
(a) The Mother will book and pay for the return airfares for the children between City B and City C/City D/Region E to spend time with her in accordance with these Orders;
(b) The Parents will each be responsible for booking and paying for the costs of their own airfares to accompany the Children;
(c) Changeover is to be effected:
(i) In the case of the children spending time with the Mother in New South Wales:
A. By the Father ensuring that the Children are on booked airfares made in accordance with these Orders and the Mother collecting the Children from City C/City D/Region E airports, as the case may be, according to bookings that are made pursuant to these Orders; and
B. By the Mother ensuring that the Children are on booked airfares made in accordance with these Orders and the Father collecting the Children from City B airport according to bookings that are made pursuant to these Orders;
(ii) In the case of the Children spending time with the Mother in Tasmania, at a location and time agreed in writing at least seven (7) days prior to the Children spending time with the Mother according to these Orders; and
(d) When booking flights, each parent is to provide to the other parent a copy of the Children’s flight itinerary to and from Tasmania no less than four (4) weeks prior to the date of the Children’s travel.
Communication
6. The Father will facilitate a phone call between the Children and the Mother as follows:
(a) Each Wednesday night at 7:00 pm; and
(b) Such other reasonable times as requested by the Children or the Mother.
7. The Children be at liberty to contact either parent in accordance with each of their wishes.
8. Both Parents be at liberty to telephone the Children on each of the Children’s respective birthdays if the Children are not otherwise in the care of that parent at a time to be agreed in writing between the Parents, but failing agreement at 5:00pm.
9. The Mother shall facilitate a phone call between the Children and the Father on his birthday if the Children are not otherwise in his care on that day at a time to be agreed in writing between the Parents, but failing agreement at 5:00pm.
10. The Father shall facilitate a phone call between the Children and the Mother on her birthday if the Children are not otherwise in her care on that day at a time to be agreed between the Parents, but failing agreement 5:00pm.
11. The Parents shall communicate using the app ‘App Close’ or ‘Our Family Wizard’, with each parent to pay the cost of their account on the app.
12. The Parents will use civil and respectful language when communicating with each other, and their communication will be confined to issues relating to joint decision making for the children and on their health, welfare and development.
13. Each parent will refrain from:
(a) Abusing, insulting, belittling, rebuking, or otherwise speaking negatively, rudely, or critically about the other parent or members of their families/households to the Children or within the hearing of the Children, and permitting the Children to remain in the presence of any other person doing so; and
(b) Denigrating the other parent, their family or friends via written correspondence, online or on social media which may be viewed or accessed by the Children.
14. The Parents keep each other informed of their contact details and residential addresses, and must notify the other parent within 48 hours if any change is made to the same.
Health and Education
15. Should either of the Children require professional medical attention whilst in the care of one parent, that parent will notify the other as soon as practicable and advise them of the details of the treating medical professional.
16. Each parent will keep the other notified of the names and contact details of all medical and health care professionals that the Children see from time to time, and any school, daycare or extra-curricular facility they attend.
Other Matters
17. The Parents be and are hereby restrained from consuming alcohol to above a blood alcohol content of 0.05% while the Children are in their care and will remove the children from the presence of third parties who are affected by excessive alcohol consumption.
18. Each parent must not to expose the Children to family violence and, in the event that the Children are present during any family violence, they are to remove the Children to a safe place immediately.
The Parents
19. If he has not already done so, the Father complete the MENS Program at G Services and must provide the Mother with a copy of his certificate of completion within two (2) months of the date of these Orders.
20. The Father complete the J Program at G Services and provide a copy of his certificate of completion to the Mother within two (2) months of the date of these orders.
21. Within two (2) months of the date of these Orders, the Mother enrol in and complete the F Program at H Services and provide a copy of her certificate of completion to the Father within fourteen (14) days of completion.
22. The Mother continue to receive therapeutic support from a suitable support service or psychologist and follow treatment recommendations made to her.
23. The Mother has leave to provide a copy of the Family Report dated 28 February 2024 to her treating psychologist or counsellor.
General Authority
24. Each of the parents do all acts and things that may be required to ensure that they are each authorised to:
(a) Be provided with copies of any reports or records provided to them respectively by any medical, dental or other health professional attended by the Children or either of them;
(b) Receive from the other parent any identity documents, medical documents, or other documents relation to the Children;
(c) Receive information, notices, reports, class lists and photographs directly from any school, extra-curricular or sporting activities attended by the Children; and
(d) Attend all events to which parents are invited and are permitted to attend, including but not limited to open days, concerts, parent teacher interviews, sports days and like events.
25. The Parents have leave to provide a copy of these Orders to any school, medical or allied health professional treating the Children and/or any provider of extra- curricular activities or sporting activities attended by the Children.
Procedural
26. All extant applications are otherwise dismissed.
27. The Independent Children’s Lawyer meet with the Children and explain to them the terms of these Orders.
28. The appointment of the Independent Children’s Lawyer is hereby discharged seven (7) days from the date of compliance with Order 27 of these Orders.
BY CONSENT, THE COURT ORDERS THAT:
29. In the event that the Mother returns to live in Region K of Tasmania within two (2) years of the date of these Orders, the Children will live in a week about arrangement between the Parents, with changeovers to occur at the conclusion of school on Fridays, or if a non-school day at 3:30pm and further that for the duration of the time the Mother lives in Region K Tasmania Orders 3 and 4 of these Orders are suspended.
THE COURT NOTES THAT:
A. Pursuant to ss 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 are set out in Attachment A 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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