FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Picard & Picard (No 2) [2025] FedCFamC2F 37
File number(s): BRC 8521 of 2024 Judgment of: JUDGE BERTONE Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – Where final parenting orders were made on 15 November 2017 for equal time and equal shared parental responsibility – Where Mother is relocating to Perth from City B with or without the children –– Where Mother seeks orders to relocate children to Perth in time for start of new school year - Where final parenting orders are not workable – Where Father opposes relocation and seeks orders that the children live within City B with him – Mother seeks costs for s65DAAA Legislation: Family Law Act 1975 (Cth), Part VII Cases cited: AMS v AIF; AIF v AMS (1999) FLC 92-852
Baghti & Baghti and Ors [2015] FamCAFC 71
Nada and Nettle (Costs) [2014] FamCAFC 207
Penfold v Penfold (1980) 144 CLR 311;
Whisprun Pty Ltd & Dixon [2003] HCA
Division: Division 2 Family Law Number of paragraphs: 218 Date of last submission/s: 17 January 2025 Date of hearing: 16 January 2025 – 17 January 2025 Place: Brisbane Counsel for the Applicant: Ms K Chesterman Solicitor for the Applicant: Groom & Lavers Solicitors Counsel for the Respondent: Mr T Jordan Solicitor for the Respondent: Best Wilson Buckley Family Law ORDERS
BRC 8521 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS PICARD
Applicant
AND: MR PICARD
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS:
1.All previous parenting orders are discharged.
2.The Mother and Father have joint decision making authority for the major long-term decisions concerning the children, X born in 2012 and Y born in 2013 (“the children”) and they shall consult with each other about all matters concerning the children’s long term care, welfare and development, including but not limited to matters concerning:
(a)Health and medical needs;
(b)Education, including selection of schools the children are to attend;
(c)Religion; and
(d)Living arrangements in terms of any changes thereto that would be significantly more difficult for the children to spend time with the other parent.
3.The parents shall consult with each other about decisions to be made in the exercise of their joint decision making responsibility as follows:
(a)Each shall inform the other parent about the decisions proposed to be made;
(b)Each shall consult with the other with a view to reaching terms upon which they may agree; and
(c)Each make a genuine effort to come to a joint decision with the other parent.
CO-PARENTING ARRANGEMENTS
4.The children shall live with, spend time with, and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
TIME ARRANGEMENTS
5.Commencing 31 January 2025, the Mother is at liberty to…
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CaseChat Overview and Summary
The court considered the best interests of the children as the paramount consideration, under section 60CA of the Family Law Act 1975 (Cth). The mother's intention to relocate to Perth was based on career opportunities, which the court recognised as a legitimate reason. The father opposed the relocation, arguing that it would disrupt the children's established routines and relationships, particularly with him and their extended family in City B. The court found that the final parenting orders made on 15 November 2017 were not workable given the mother's intention to relocate. The court acknowledged the importance of stability and continuity in the children's lives but also recognised the mother's legitimate reasons for seeking a change in their living arrangements. The court concluded that the relocation to Perth was in the children's best interests and ordered that the mother could relocate with or without the children. The court then set out detailed arrangements for the children's time with each parent, taking into account the need for flexibility and the importance of maintaining a close relationship with both parents. The court dismissed the mother's application for costs against the father.
The court discharged all previous parenting orders and made new orders for joint decision-making authority for major long-term decisions concerning the children. The parents were required to consult with each other about all matters concerning the children's long-term care, welfare, and development. The children were to spend time with each parent in a detailed schedule that included specific arrangements for school holidays, special occasions, and interstate travel. The court also set out provisions for communication between the children and their parents, changeovers, and the sharing of costs for air travel. The mother was permitted to relocate to Perth with the children from 31 January 2025. The father was granted specific periods of time with the children before the relocation and after, including during school holidays and special occasions. The court emphasised the importance of respecting the other parent and avoiding adult matters in the presence of the children. The mother's application for costs against the father was dismissed.
Orders
Orders of the court
BRC 8521 of 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS PICARD
Applicant
AND:
MR PICARD
Respondent
ORDER MADE BY:
JUDGE BERTONE
DATE OF ORDER:
24 JANUARY 2025
THE COURT ORDERS:
1. All previous parenting orders are discharged.
2. The Mother and Father have joint decision making authority for the major long-term decisions concerning the children, X born in 2012 and Y born in 2013 (“the children”) and they shall consult with each other about all matters concerning the children’s long term care, welfare and development, including but not limited to matters concerning:
(a) Health and medical needs;
(b) Education, including selection of schools the children are to attend;
(c) Religion; and
(d) Living arrangements in terms of any changes thereto that would be significantly more difficult for the children to spend time with the other parent.
3. The parents shall consult with each other about decisions to be made in the exercise of their joint decision making responsibility as follows:
(a) Each shall inform the other parent about the decisions proposed to be made;
(b) Each shall consult with the other with a view to reaching terms upon which they may agree; and
(c) Each make a genuine effort to come to a joint decision with the other parent.
CO-PARENTING ARRANGEMENTS
4. The children shall live with, spend time with, and/or communicate with each of their parents for such periods of time, or in such manner, as might be agreed between the parents in writing and, failing further or other agreement, in accordance with the succeeding provisions of these orders.
TIME ARRANGEMENTS
5. Commencing 31 January 2025, the Mother is at liberty to relocate the children’s place of residence to Perth, Western Australia.
6. Until such time that the children relocate to Perth, the children shall spend time with their Father as follows:
(a) From 9:00am on 23 January 2025 until 5:00pm on 30 January 2025.
7. Prior to the Father’s relocation to Perth, the children shall live with the Mother, and spend time with the Father as follows:
(a) The Father be at liberty to spend time with the children in Western Australia during the school term with the provision of at least 14 days written notice being given to the Mother, provided that the children continue to attend school as required and attend their extra-curricular activities as scheduled;
(b) For the time pursuant to this order the time can occur for up to one week each school term;
(c) For the entire Easter school holiday period in 2025; and
(d) For the entire June/July school holiday period in 2025.
8. Upon the Father relocating to Perth, the children shall resume spending time with the parents as follows:
(a) The children live between the parents on a five-night, two night, each week equal time arrangement:
(i) In week 1, with the Father for five nights and with the Mother for two nights; and
(ii) In week 2, with the Mother for five nights and with the Father for two nights.
(b) Changeovers are to occur each Friday after school or at 3pm.
DURING SCHOOL HOLIDAY PERIODS IF BOTH PARENTS ARE IN PERTH
9. The children spend time with the Mother for the first half of the school holiday periods, in odd numbered years, and in even numbered years with the Father.
10. The children spend time with the Father for the second half of the school holiday periods, in odd numbered years, and in even numbered years with the Mother.
11. Provided the Father gives the Mother not less than eight weeks’ notice, each year the Father may elect to spend the whole of one mid-year term holiday with the children for the purpose of spending time with the children in City B.
12. Upon the Father providing the Mother with fourteen days written notice of an intended visit from his mother, father or both of them, or any of the Fathers other family members, the Mother shall propose one additional night each week and the Father shall propose one full weekend (from after school Friday until before school Monday) whilst the Father’s family is in Perth for the children to spend extra time with the Father and his family, provided however that the children spend no less than one night with the Mother in any one week block. This additional time with the Father’s family must not at any time:
(a) Be less than twenty-one days following any trip by the children to Queensland;
(b) Interfere with any block period of time that the children are to spend with the Mother pursuant to these orders;
(c) Amount to more than fourteen days in any calendar year;
(d) Interfere with the Mother’s pre-existing plans, involving the children, during that period which cannot reasonably be re-scheduled; and
(e) Prevent the children from spending less than one night with the Mother in any one week block.
SPECIAL DAYS
13. Notwithstanding any contrary arrangements pursuant to the balance of these Orders, the children will spend time and communicate with their parents on special occasion as follows:
Christmas Day
14. Unless otherwise agreed, the children shall spend Christmas with each parent:
(a) From 10:00am Christmas Eve until 10:00am Boxing Day in 2025 and alternate years thereafter with the mother,
(b) From 10:00am Christmas Eve until 10:00am Boxing Day in 2026 and alternate years thereafter with the father, and
(c) In the event both parents are in the same town on Christmas Day, then the other parent is at liberty to spend time with the children:
(i) for two hours on Christmas Day; at a time agreed between the parents and failing agreement at 9:00am; and
(ii) from 10:00am Boxing Day the following day.
Easter
15. Unless otherwise agreed, the children shall spend Easter with each parent:
(a) Commencing 2025 and in each odd numbered year thereafter, with the Father from 12:00pm on Easter Saturday until 5:00pm on Easter Monday; and
(b) Commencing 2026 and in each even numbered year thereafter, with the Mother from 12:00pm on Easter Saturday until 5:00pm on Easter Monday;
Birthdays
16. The children shall spend time with each parent:
(a) On the birthday of the children, provided both parents are in the same State, unless otherwise agreed:
(i) If a school day, from after school until 5:30pm;
(ii) If a non-school day, from 11:30am until 4:30pm; and
(iii) With the parent who is spending time with the children to be responsible to collect and return the children.
(b) On the birthday of either parent, provided both parents are in the same State, unless otherwise agreed:
(i) If a school day from after school until 6:30pm;
(ii) If a non-school day, from 11:30am to 4:30pm; and
(iii) With the parent who is spending time with the children to be responsible to collect and return the children.
Father's Day
17. The children shall spend time with the Father on Father’s Day from:
(a) 3:00pm Saturday until 5:00pm Sunday, with the Father to be responsible to collect and return the children; and
Mother's Day
18. The children shall spend time with the Mother on Mother’s Day from:
(a) 3:00pm Saturday until 5:00pm Sunday with the Mother to be responsible to collect the return the children.
CHILDREN’S COMMUNICATION WITH THE PARENTS
19. When the children are spending time with either parent, the other parent shall be at liberty to communicate with the children:
(a) By telephone:
(i) At all reasonable times when one or both of the children wishes to communicate with the other parent;
(ii) At all such times as the children might reasonably request consistent with their daily routines and commitments;
(iii) At all reasonable times when the other parent wishes to communicate with one or both of the children;
(iv) On the children's birthdays; and
(v) The parent that the children are with will, so far as possible having regard to the children's ages, let the children take such calls in private, and without interruption.
(b) Via internet, email, Skype and any such other form of on-line or electronic communication at all such times as the children or the other parent might reasonably request consistent with the children’s daily routines and commitments.
(c) So far as possible, having regard to the children's ages, both parents shall let the children communicate with the other parent in private and without interruption.
20. The children shall be at liberty to use their own electronic devices to communicate with the parent with whom they are not spending time at all reasonable times provided the number and length of such communication is not excessive and they do not unreasonably interfere with the children's time with the parent with whom they are spending time.
21. The parent receiving a call from the children shall exercise consideration and respect for the other parent if the call follows a disagreement between the child and the parent with whom they are spending time ensuring the children are unable to play one parent off against the other.
CHANGEOVERS
22. Unless otherwise agreed, all changeovers occurring on a school day are to take place at the children’s school. On a non-school day:
(a) The Father or his nominee will collect the children from the Mother's residence at the commencement of any time when the children are to be in his care; and
(b) The Mother or her nominee will collect the children from the Father's residence at the commencement of any time when the children are to be in the Mother's care; and
23. The parent that is concluding their time will ensure the children have their items that move between the houses ready to be collected by the children that afternoon, or otherwise that parent will deliver the items to the other parent that evening.
INTERSTATE TRAVEL
24. Unless the parties otherwise agree in writing, the children shall not travel interstate without an adult companion until X is fourteen years of age. Until that time, the parent wishing for the child or children to travel must accompany them or must arrange for a nominee approved by the other parent to travel with them.
COSTS OF TRAVEL
25. The parents are to share the cost of air travel for the purposes of these Orders, which includes:
(a) The cost of four return flights per child per year between City B and Perth, Perth and City B are to be shared equally by the parents; and
(b) The cost of any additional flights in excess of the above are to be paid for by the parent at whose request the children are intending to travel.
SPECIFIC ISSUES
26. During the time the children are with either parent, that parent shall:
(a) Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) Speak of the other parent respectfully;
(c) Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and
(d) Not discuss any adult matters with the children or in their hearing.
27. The Mother and Father shall:
(a) Keep the other parent informed at all times of their residential address, email address and landline contact telephone number and advise of any change to this within 24 hours;
(b) Keep the other parent informed of the names, contact details and addresses of any treating medical or other health practitioners who treat the children and as far as reasonably practicable, the Mother and Father shall use the same medical practitioner for the children's treatment;
(c) Advise the other parent of any medical appointments made for the children in advance of such appointment;
(d) Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children;
(e) Inform the other parent as soon as reasonably practicable of any time the children have spent off school or day care whilst in that parent's care for medical or other reasons; and
(f) Should the children be on any medication (whether prescribed by a medical practitioner or not) each parent shall keep the other informed as to the nature of the medication and as far as reasonably practicable, ensure that the medication accompanies the children at any changeover between the parents and in any event, subject to either parent receiving appropriate medical advice to the contrary, each parent shall take all reasonable steps necessary to ensure that any medication being taken by the children whilst in the care of one parent is continued for the children whilst in the care of the other.
28. These Orders authorise any medical or other health practitioners to release the children's medical information to both of the parents.
29. Any education institution which are attended by the children are hereby authorised and empowered to provide to both parents any information about the children's educational progress and school related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the children. Any out-of-pocket expense connected to any such request shall be the responsibility of the party who made such request.
30. Both parties are at liberty to attend the children's sporting and extra-curricular activities; and any other school event to which parents are typically invited to attend.
CALCULATION OF SCHOOL HOLIDAY TIME
31. For the purpose of special occasion time in these Orders, the school holiday time shall commence:
(a) When a parent's time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5:00pm on the day calculated to be half of the holidays;
(b) When a parent's time falls in the second half of the holidays from 5:00pm on the day calculated to represent half of the holidays and shall end at 9:00am on the day the school term recommences; and
(c) School holidays shall be deemed to commence at the conclusion of school on the last day of the relevant school term and conclude at the commencement of school on the first day of the relevant school term and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights then changeover shall occur at 12 noon on the day deemed to be the middle day of the school holiday period.
FAMILY DISPUTE RESOLUTION
32. In the event of any dispute as to the interpretation, implementation or enforcement of this Order (including any claim by a parent that it should be varied) the parents shall first attend Family Dispute Resolution (“FDR”) with an FDR Practitioner appointed by the parents and make a genuine attempt to resolve the dispute.
33. Failing agreement as to that appointment the parent raising the dispute shall nominate three FDR Practitioners, one of whom shall be chosen by the other parent within fourteen days failing which the initial parent can nominate the mediator.
34. Both parents will attend the mediation, and each will pay half of the costs of the mediator for the mediation.
COSTS
35. The Mother’s application for costs against the Father for the hearing on 20 November 2024 is dismissed.
THE COURT NOTES:
A. All time referred to in these Orders is pursuant to the local time where the children are residing.
B. It is intended that if the parents need to make urgent arrangements for the children to attend Western Australia or Queensland to attend any grandparents last days, and/or funerals, the parents will work together to ensure that all efforts are made to arrange this.
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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