FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ortega & Collier (No 2) [2024] FedCFamC1F 678
File number(s): SYC 6345 of 2022 Judgment of: BEHRENS J Date of judgment: 14 October 2024 Catchwords: FAMILY LAW – PARENTING – Spend time with and progression of such time – Child experiences separation anxiety but needs more experience of the father and his household – Need to balance those matters – Prior allegations of physical discipline in the father’s household – Mother no longer seeks finding of unacceptable risk of abuse in father’s care – Lengthy period of litigation – No trust and ineffective communication between the parents – Where otherwise parents both have good parenting capacity – Where both parents seek an order for joint decision-making responsibility – Where mother seeks she be able to make certain decisions in the absence of agreement – Where such an order should be made to reduce the risk of further litigation –Where the mother seeks to change the child’s name to a hyphenated surname – Where such an order should be made – Where parents seek appointment of parenting coordinator – Where insufficient evidence as to appointment of parenting coordinator – Where orders made for time spent with father to progress – Where limited restraints are made Legislation: Family Law Act 1975 (Cth) ss 60CC, 60CG, 61DAA, 68B, 114(2A)
Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 10
Births Deaths and Marriages Registration Act 1995 (NSW) s 28(5)
Family Law Amendment Bill 2023 (Cth), Explanatory Memorandum
Hague Convention on the Civil Aspects of International Child Abduction
Cases cited: A & B (No 2) [2003] FMCAfam 530
AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
Beach and & Stemmler (1979) FLC 90-692
Chapman & Palmer (1978) FLC 90-510; [1978] FamCA 86
Franklyn & Franklyn [2019] FamCAFC 256
Reynolds and Sherman (2015) FLC 93-659; [2015] FamCAFC 128
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
U v U (2002) 211 CLR 238; [2002] HCA 36
Zachariah & Zachariah [2017] FamCA 482
Division: Division 1 First Instance Number of paragraphs: 107 Date of last submission/s: 5 September 2024 Date of hearing: 2-5 September 2024 Place: Sydney Senior Counsel for the Applicant: Ms Dellidis SC Junior Counsel for the Applicant: Ms Fisken Solicitor for the Applicant: H Drakos & Company Counsel for the Respondent: Ms Dart Solicitor for the Respondent: Broun Abrahams Burreket ORDERS
SYC 6345 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR COLLIER
ApplicantAND: MS ORTEGA
Respondent
ORDER MADE BY:
BEHRENS J
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The parents, Ms Ortega (“the Mother”) and Mr Collier (“the Father”) (jointly “the parents”) have joint decision-making responsibility for major long-term issues in respect of X, born 2020 (“X”).
3.Notwithstanding Order 2, if a major long-term decision needs to be made in relation to X’s health (“the decision”), and save for and except where the decision…
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- AGLC
- Ortega & Collier (No 2) [2024] FedCFamC1F 678
- Case
- [2024] FedCFamC1F 678
- Decision Date
CaseChat Overview and Summary
The court resolved several key issues. Firstly, it determined that the parents would have joint decision-making responsibility for major long-term issues, with specific provisions for health-related decisions. Secondly, the court established a progressive schedule for time-sharing, starting with three nights a fortnight from November 2024, increasing to four nights a fortnight in 2025, and ultimately five nights a fortnight in 2026. The court also outlined detailed arrangements for school holiday periods and special occasions. Thirdly, the court allowed the child’s surname to be changed to Ortega-Collier. Lastly, minimal restraints were imposed on the parents, with provisions for international travel starting from 2027. The court's reasoning emphasized the need to reduce further litigation and improve co-parenting.
The final orders discharged all previous parenting orders and established new guidelines for joint decision-making, time-sharing, name change, and international travel. The court also mandated that the parents engage in family dispute resolution if they could not resolve disputes themselves. The decision aimed to foster a more cooperative co-parenting relationship and provide a stable environment for the child.
Orders
Orders of the court
SYC 6345 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR COLLIER
Applicant
AND:
MS ORTEGA
Respondent
ORDER MADE BY:
BEHRENS J
DATE OF ORDER:
14 OCTOBER 2024
THE COURT ORDERS THAT:
1. All previous parenting orders are discharged.
2. The parents, Ms Ortega (“the Mother”) and Mr Collier (“the Father”) (jointly “the parents”) have joint decision-making responsibility for major long-term issues in respect of X, born 2020 (“X”).
3. Notwithstanding Order 2, if a major long-term decision needs to be made in relation to X’s health (“the decision”), and save for and except where the decision is required to be made in an emergency:
(a) The parent seeking for the decision to be made is to notify the other parent in writing of the issue, their preference(s) in relation to the decision and the reasons for their preference;
(b) The other parent is to respond in writing within seven days of receipt of the notification provided for in Order 3(a);
(c) If the parents thereafter remain in disagreement, they are to consult with any parenting coordinator who is engaged by them at the time the decision needs to be made, with a view to the coordinator assisting the parties to reach a consensus;
(d) If the parents are unable to reach an agreement within 28 days of the notification being provided pursuant to Order 3(a), the Mother is at liberty to make the decision and is thereafter to notify the Father within seven days of the decision being made and provide him with all relevant details, including but not limited to, the name and contact details of any relevant practitioner, the dates of appointments for X and the nature of those appointments.
4. X is to be known by the name X Ortega-Collier and the Mother, by this order, is authorised to apply to the New South Wales Registrar of Births Deaths and Marriages ("the Registrar") so that the child registered as X Collier born 2020 be now registered as X Ortega-Collier.
5. Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child's name in the form specified in Order 4 herein.
6. The Mother forthwith shall serve a sealed copy of this order upon the Registrar.
7. The Mother shall pay all the costs of and associated with the changes to the child's name pursuant to Orders 4-6 above.
8. Upon the registration of X’s name as X Ortega-Collier, both parents are restrained from using a surname for X other than Ortega-Collier.
9. The parents are to do all acts and things necessary to complete X's enrolment in and attendance at C Preschool in 2025.
10. The parents are to do all acts and things necessary to enrol X at D School, to commence Kindergarten in 2026.
11. The parents are to do all acts and things necessary to confirm with E School that X's enrolment for Year 7 is to commence in 2033.
12. X shall live with the Mother.
13. X shall spend time with the Father as agreed between the parents, and failing agreement, as follows:
(a) Until 1 November 2024, on a fortnightly basis, being:
(i) In week 1 from 4.30 pm on Friday until 4.30pm on Sunday; and
(ii) In week 2 from 9.00 am to 4.00 pm on Sunday.
Stage 1 (three nights and a Thursday afternoon)
(b) From 1 November 2024 until the commencement of the term holiday at the end of Term 1 2025, on a fortnightly basis as follows:
(i) In week 1 from Friday at the conclusion of X's pre-school, or 3.00 pm if not a pre-school day, until 9.00 am on Monday;
(ii) In week 2 on Thursday from the conclusion of X’s pre-school, or 3.00 pm if not a pre-school day, until 6.30pm.
Stage 2 (four nights and a Thursday afternoon)
(c) From the commencement of the term holiday at the end of Term 1 2025 until the commencement of Term 2 2026, on a fortnightly basis as follows:
(i) In week 1 from Thursday at the conclusion of X's pre-school/school, or 3.00 pm if not a pre-school/school day, until 9.00 am on Monday;
(ii) In week 2 on Thursday from the conclusion of X's pre-school/school, or 3.00 pm if not a pre-school/school day, until 6.30 pm.
Stage 3 (five nights)
(d) From the commencement of Term 2 2026, on a fortnightly basis during school terms as follows:
(i) In week 1 from Thursday at the conclusion of X's school, or 3.00 pm if not a school day, until the commencement of school on Monday, or 9.00 am if not a school day;
(ii) In week 2 from Thursday at the conclusion of X's school, or 3.00pm if not a school day, until the commencement of X's school on Friday, or 9.00 am if not a school day.
School holidays
14. X shall spend time with the Father during NSW school holidays as agreed between the parents, and failing agreement, as follows:
(a) From the conclusion of Term 1 2025 until the commencement of Term 1 2026, the time provided for pursuant to Order 13(c)(ii) above is suspended, and X will spend an additional Monday night with the Father on the weekends that conclude during the school holidays and during which X is spending time with him pursuant to Order 13(c)(i) above, with that time to conclude at 4.00 pm on the Tuesday.
(b) Notwithstanding Order 14(a) above, if the Father’s weekend pursuant to Order 13(c)(i) coincides with the Australian and Orthodox Easter weekend in 2025:
(i) X’s time with the Father pursuant to Order 13(c)(i) is suspended that weekend; and
(ii) X shall spend time with her parents on the Easter weekend in accordance with Order 17(i) and (j) below; and
(iii) X shall spend time with the Father from 3pm on Thursday 10 April 2025 until 4.00pm on Tuesday 15 April 2025.
(c) From the conclusion of Term 1 2026, Order 13 above is suspended during NSW school holidays and X will spend time with the Father as follows:
(i) For the Term 1, 2 and 3 school holidays in 2026 in a seven-night block commencing 9.00 am on the second Saturday of the school holidays until 4.00 pm on the final Saturday of the school holidays.
(ii) For the Term 4 school holidays in 2026 in two seven-night blocks from 9.00 am on the second and fourth Saturdays until 4.00 pm on the third and fifth Saturdays.
(iii) For the Term 1, 2 and 3 school holidays from 2027 for half of those school holidays, commencing with the Mother in the first week in odd‑numbered years and with the Father in first week in even-numbered years and with changeover to occur at 4.00 pm on the second Saturday, and otherwise to be from the conclusion of school on the last day of the term and to the commencement of school on the first day of term.
(iv) For the Term 4 school holidays from the end of 2027 until 2029 on a week about (or part thereof) basis, as follows:
A. commencing from the conclusion of school on the last day of Term 4; and
B. with changeover to occur at 4.00 pm on the day that is one week later, or at school on the first day of school in the new term, if the parent’s time has commenced less than a week prior; and
C. commencing with the Mother in the first week in even-numbered years and with the Father in the first week in odd-numbered years.
(v) For the Term 4 school holidays from the end of 2029 onwards, for one half of each long summer holiday period with each of her parents, at dates and times as agreed, and failing agreement, with the Father for the first half in odd years, and with the Mother for the first half in even years. For the purposes of this order, the Term 4 school holidays are deemed to commence on the last day of the school term and conclude on the first day of the school term.
FaceTime
15. Each parent will facilitate any reasonable request by X to FaceTime or telephone the other parent.
16. During school holiday periods, from the conclusion of Term 1 in 2025:
(a) The Mother is to do all things necessary to facilitate telephone/FaceTime (or similar application) contact between X and the Father twice per week as agreed between the parties and failing agreement each Tuesday and Saturday that X is in the Mother's care at 6.30 pm.
(b) The Father is to do all things necessary to facilitate telephone/FaceTime (or similar application) contact between X and the Mother twice per week as agreed between the parties and failing agreement each Tuesday and Saturday that X is in the Father's care at 6.30 pm.
Special Occasions
17. Notwithstanding anything to the contrary in these orders X, shall spend time with her parents on special occasions as agreed between them and, failing agreement, as follows:
(a) On the first full weekend that X spends with her Father pursuant to Order 13(b) after Christmas Day 2024, for an additional Monday night, with X to return to the care of the Mother at 4.00pm on the Tuesday and with X’s time with the Father otherwise during the summer 2024/2025 holiday to be in accordance with Order 13(b).
(b) If X is not otherwise in the Father's care on Father's Day, she shall spend time with the Father from 9.00 am until 5.00 pm on Father's Day.
(c) If X is not otherwise in the Mother's care on Mother's Day, she shall spend time with the Mother from 9.00 am until 5.00 pm on Mother's Day.
(d) On her birthday X will spend time with the parent who does not have X in their care at the time from 9.00 am until 1.00 pm, or if her birthday is a school day, from the conclusion of school until 5.00 pm.
(e) In even-numbered years X will spend time with the Mother from 9.00 am on Christmas Eve until Christmas Day at 11.00 am and with the Father from 11.00 am on Christmas Day until 3.00 pm on Boxing Day.
(f) In odd-numbered years X will spend time with the Father from 9.00 am on Christmas Eve until Christmas Day at 11.00 am and with the Mother from 11.00 am on Christmas day until 3.00 pm on Boxing Day.
(g) Unless Orthodox Easter falls on the same weekend as Australian Easter, for Australian Easter in even-numbered years X will spend time with the Mother from 9.00 am on Good Friday to 9.00 am on Easter Sunday and with the Father from 9.00 am on Easter Sunday until 9.00 am or at school/pre-school on the following Tuesday.
(h) Unless Orthodox Easter falls on the same weekend as Australian Easter, for Australian Easter in odd-numbered years X will spend time with the Father from 9.00 am on Good Friday to 9.00 am on Easter Sunday and with the Mother from 9.00 am on Easter Sunday until 9.00 am or at school/pre-school on the following Tuesday.
(i) For the Orthodox Easter weekend in even-numbered years, X will spend time with the Father from 4.30 pm on the Friday of that weekend until 4.30 pm on the Saturday of that weekend and with the Mother from 4.30 pm on the Saturday of that weekend until 4.30 pm on the Sunday of that weekend.
(j) For Orthodox Easter weekend in odd-numbered years, X will spend time with the Mother from 4.30 pm on the Friday of that weekend until 4.30 pm on the Saturday of that weekend and with the Father from 4.30 pm on the Saturday of that weekend until 4.30 pm on the Sunday of that weekend.
Changeover
18. Unless otherwise agreed, changeover will occur at X’s pre-school/school when X is in attendance, or otherwise at the home of the parent from whose care X is changing.
Restraints
19. Unless the parents agree otherwise:
(a) Both parents are restrained from removing X outside the state of New South Wales more than once every six weeks.
(b) Both parents are restrained by injunction from insulting, criticising, belittling or otherwise denigrating the other parent and/or a member of that parent's family in the presence or hearing of X.
(c) Each parent will immediately remove X from the presence or hearing of any other person who is insulting, criticising, belittling or otherwise denigrating the other parent and/or a member of that parent’s family.
International Travel
20. From the commencement of 2027, the parents are at liberty to travel outside of Australia with X during any period when X would be living or spending time with that parent in accordance with these orders, provided that:
(a) Any proposed destination or stopover (which does not apply to in-transit destinations only) must be a country which has acceded to the Hague Convention on the Civil Aspects of International Child Abduction and is a convention country under reg 10 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth);
(b) Notice in writing of the intended travel is provided to the other parent no less than six weeks prior to the intended departure date.
(c) No less than four weeks prior to the intended departure date, the travelling parent shall provide the other parent with:
(i) Copies of return tickets for X and the travelling parent;
(ii) A detailed written itinerary of the proposed travel, including details of the travelling party, the dates at all locations and destinations of travel and details of accommodation for the entire period of travel (including the name of accommodation, address, telephone and email contact details) and transportation (including the name of the airline, flight number, dates and times of flights);
(iii) An available telephone number at which communications with X can occur during the period of travel; and
(iv) A copy of travel insurance which insures X whilst travelling overseas for the highest level of cover available with the insurer.
(v) The travelling parent shall do all acts and things necessary to cause X to be vaccinated against, or complete a course of medicine/tablets to prevent, diseases from which a person may be at risk in the country or countries where X will be travelling, in accordance with the recommendations of the World Health Organisation medium to high risk of infection current at the time.
(d) At the conclusion of 2026, the parents shall execute a joint application for an Australian passport for X, and each parent shall do all acts and things, and sign all documents necessary to ensure that X maintains a current passport and each parent will share equally in the costs of obtaining the passport.
(e) The Mother shall have possession, custody and control of X's passport.
(f) Within seven days of the Father's compliance with Order 20(a)-(c)(i-iv) above, the Mother shall deliver X's passport to the Father, and the Father shall return X's passport to the Mother within three days of returning to Australia.
(g) The parent with whom X is travelling overseas shall facilitate the other parent contacting X at a reasonable time once a day as agreed, and failing agreement, between 7.30 pm and 8.30 pm in the local time zone where X is staying.
Other
21. In the event either parent proposes to take X to stay overnight outside of Sydney during a period X is otherwise spending time with them, they shall notify the other parent in writing at least two days prior to the intended travel and provide the address at which X will be staying.
22. The parents shall notify each other of any changes to their address within seven days of making such changes.
23. The parent with whom X is living/spending time with shall use their best endeavours to ensure that X attends all school-related, extracurricular and sporting activities in which she is enrolled.
24. Neither parent shall confirm X's attendance at an event which does not fall in the time X is living/spending time with them without the consent in writing of the other parent and each parent shall notify the other parent in writing of all invitations/notifications received for X to attend events that fall during time X shall be living/spending with the other parent as soon as practicable.
25. The parents shall immediately inform the other of any serious illness or injury sustained by X whilst in their care and provide particulars of any diagnosis and treatment in relation to X, together with the name and contact details of the treatment provider.
26. These orders shall be sufficient authority for each parent to obtain from X's medical practitioner, healthcare provider or counsellor any information or report regarding X's health upon request and at the cost of that parent.
27. This order authorises X's pre-school or school to give each parent information about X's education progress and other related activities including copies of any reports, photographs, certificates and awards.
28. This order authorises X's pre-school or school to inform each parent of all extra‑curricular activities which occur in X's pre-school or school including parent/teacher meetings, sporting/special events and any other activities to which the parents are invited.
Disputes in relation to the implementation of these orders
29. In the event the parents are unable to resolve a dispute regarding the implementation of these orders:
(a) If the parents have a parenting coordinator engaged, the parents will confer with the parenting coordinator with a view to reaching an agreement between themselves.
(b) If the parents are unable to reach an agreement, they will engage in family dispute resolution with a family dispute resolution practitioner to assist in resolving the dispute.
(c) The parents are to attempt to agree on who the family dispute resolution practitioner will be.
(d) If the parents cannot agree who the family dispute resolution practitioner will be:
(i) The Mother is to propose to the Father in writing a list of three family dispute resolution practitioners with details of the fees, experience and availability;
(ii) If the Father selects a family dispute resolution practitioner within seven days of being presented with the list, the parties will engage that family dispute resolution practitioner. If the Father does not select a family dispute resolution practitioner within seven days of being presented with the list, the parties shall engage the family disputes resolution practitioner nominated by the Mother.
(e) Any costs of the family dispute resolution are to be paid for equally by the parents.
THE COURT NOTES THAT:
A. The Father has agreed to enrol in, attend and complete the Circle of Security Parenting Course and the Triple P Parenting Program, noting that his evidence is that he has already completed courses. The Court is of the view that it would assist the Mother to have confidence in his parenting, and therefore assist the parents’ co-parenting relationship and X, if he was to undertake those courses as soon as possible, and provide the Mother of evidence that he has done so.
B. The parents agree with the recommendation of the Single Expert that a parenting coordinator would be of assistance to them. The parents are at liberty to engage a parenting coordinator and to make whatever arrangements for payment they can agree between themselves.
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
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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