FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Samuel & Walton [2024] FedCFamC2F 1525
File number(s): PAC 4037 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 30 October 2024 Catchwords: FAMILY LAW – PARENTING – Relocation – Best interests of child. Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CD, 60DE, 61D Cases cited: Banks & Banks (2015) FLC 93-637
Grainger & Grainger (No 3) [2024] FedCFamC1F 470
Jollie & Dysart [2014] FamCAFC 149
Tibb v Sheean (2018) 58 Fam LR 351
Division: Division 2 Family Law Number of paragraphs: 135 Date of hearing: 8-10 October 2024 Place: Parramatta Counsel for the Applicant: Mr Friedlander Solicitor for the Applicant: Fletch Law Counsel for the Respondent: Ms Druitt Solicitor for the Respondent: Mark Brown & Associates ORDERS
PAC 4037 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SAMUEL
Applicant
AND: MS WALTON
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 OCTOBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The mother and father have equal shared parental responsibility in consultation with each other for making decisions about the long-term care, welfare and development of the child X born in 2016 (“the child”).
2.The mother’s application that she be permitted to relocate the child’s residence to the Suburb C area of Region B, NSW is dismissed.
3.The child shall live with the mother.
4.The child spend time with the father as follows:
(a)During school term:
(i)Each alternate week from the conclusion of school on Thursday until 9.00 am the following Monday, recommencing the first Thursday following the school holiday period.
(b)For half of each school holiday period as agreed between the parties in writing, or in the absence of agreement, as follows:
(i)During short (or mid-year) school holiday periods:
A.For the first half of school holiday periods in even numbered years, from 5.00 pm on the final day of the school term until 5.00 pm on the middle Saturday of the school holiday period;
B.For the second half of school holiday periods in odd numbered years, from 5.00 pm on the middle Saturday of the school holiday period until 5.00 pm the day immediately before the child’s first day of school term.
(ii)During summer school holidays commencing in 2024 and each alternate year thereafter:
A.From 5.00 pm on 17 December or 5.00 pm on the final day of the school term (whichever is later) until 12.00 noon on 25 December, and;
B.From 12.00 noon on 8 January until 12.00 noon on 22 January.
(iii)During summer school holidays commencing in 2025 and each alternate year thereafter:
A.From 12.00 noon on 25 December until 12.00 noon on 1 January, and;
B.From 12.00 noon on 15 January to 12.00 noon the day immediately before the first day the child is required to attend school.
5.In the event the child is not otherwise spending time with the father pursuant to these Orders, the mother’s time with the child shall be suspended, and the child…
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CaseChat Overview and Summary
The primary legal issues before the court involved determining whether the relocation application was in the best interests of the child and establishing a parenting arrangement that would ensure the child's welfare, education, and emotional well-being. The court had to weigh the potential benefits and drawbacks of the proposed relocation, the existing relationship between the child and each parent, and the parents' ability to co-parent effectively. Additionally, the court needed to establish a visitation schedule that would allow the child to maintain a meaningful relationship with both parents while ensuring that the child's routine and stability were not unduly disrupted.
In its reasoning, the court emphasised the importance of maintaining the child's connection with both parents, given the evidence of the significant roles both played in the child's life. The court acknowledged the mother's application to relocate but concluded that the potential negative impact on the child's relationship with the father and the disruption to the child's established routine outweighed the benefits of the relocation. The court devised a detailed visitation schedule that aimed to provide the child with regular and consistent contact with both parents while minimising the logistical challenges of maintaining these relationships. The court also outlined specific provisions for communication, special occasions, and the exchange of information to support co-parenting and ensure the child's best interests were prioritised.
The court's final orders reflect a balanced approach that recognises the rights and responsibilities of both parents. The mother and father were granted equal shared parental responsibility, with specific arrangements for decision-making in consultation with each other. The child was ordered to live with the mother but spend significant time with the father, with detailed schedules for visitation during school terms and holidays. The court also imposed restrictions on both parents to ensure a respectful and supportive co-parenting environment. The orders include provisions for communication, special occasions, and the exchange of information to support co-parenting and ensure the child's best interests are prioritised. The court's decision aims to provide the child with stability, support, and the opportunity to maintain meaningful relationships with both parents.
Orders
Orders of the court
PAC 4037 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR SAMUEL
Applicant
AND:
MS WALTON
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
30 OCTOBER 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. The mother and father have equal shared parental responsibility in consultation with each other for making decisions about the long-term care, welfare and development of the child X born in 2016 (“the child”).
2. The mother’s application that she be permitted to relocate the child’s residence to the Suburb C area of Region B, NSW is dismissed.
3. The child shall live with the mother.
4. The child spend time with the father as follows:
(a) During school term:
(i) Each alternate week from the conclusion of school on Thursday until 9.00 am the following Monday, recommencing the first Thursday following the school holiday period.
(b) For half of each school holiday period as agreed between the parties in writing, or in the absence of agreement, as follows:
(i) During short (or mid-year) school holiday periods:
A. For the first half of school holiday periods in even numbered years, from 5.00 pm on the final day of the school term until 5.00 pm on the middle Saturday of the school holiday period;
B. For the second half of school holiday periods in odd numbered years, from 5.00 pm on the middle Saturday of the school holiday period until 5.00 pm the day immediately before the child’s first day of school term.
(ii) During summer school holidays commencing in 2024 and each alternate year thereafter:
A. From 5.00 pm on 17 December or 5.00 pm on the final day of the school term (whichever is later) until 12.00 noon on 25 December, and;
B. From 12.00 noon on 8 January until 12.00 noon on 22 January.
(iii) During summer school holidays commencing in 2025 and each alternate year thereafter:
A. From 12.00 noon on 25 December until 12.00 noon on 1 January, and;
B. From 12.00 noon on 15 January to 12.00 noon the day immediately before the first day the child is required to attend school.
5. In the event the child is not otherwise spending time with the father pursuant to these Orders, the mother’s time with the child shall be suspended, and the child shall spend time with the father on the following special occasions:
(a) In any even-numbered year where Easter falls outside of the school holiday period, from 5.00 pm Holy Thursday to 5.00 pm Easter Sunday;
(b) From 5.00 pm the Friday immediately before Father’s Day to 5.00 pm Father’s Day each year;
(c) For any time during the school term pursuant to these Orders that falls immediately before or immediately after a public free day or public holiday, that time be extended by 24 hours to incorporate that public free day or public holiday;
(d) Other special occasions as agreed in writing between the parties, and the mother shall not unreasonably withhold consent for the child to attend special occasions with the father.
6. In the event that the child is not otherwise spending time with the mother pursuant to these Orders, the father’s time with the child shall be suspended, and the child shall spend time with the mother on the following special occasions:
(a) In any odd-numbered year where Easter falls outside of the school holiday period, from 5.00 pm Holy Thursday to 5.00 pm Easter Sunday;
(b) From 5.00 pm the Friday immediately before Mother’s Day to 5.00 pm Mother’s Day each year;
(c) Other special occasions as agreed in writing between the parties, and the father shall not unreasonably withhold consent for the child to attend special occasions with the mother.
7. Changeover that does not occur at school shall occur at D Street Shops, Town E.
8. Each party shall:
(a) Keep the other advised at all times of their residential address and residential telephone number and emergency contact number;
(b) Notify the other party if going on holiday outside of New South Wales of a contact telephone number;
(c) Ensure that they make available to the other, a current telephone number, Skype account or Facetime account on which the other party can contact the child during times referred to herein, or for emergencies and that during such conversations, the parent with whom the child is residing shall ensure that the child has privacy to participate in such conversations and that parent shall not interfere with, or interrupt such conversations.
(d) Communicate with the other regarding the child via email except in the case of emergencies;
(e) Notify the other if the child is unwell or of any medication the child requires within 12 hours of such event via email;
(f) Notify the other of emergencies relating to the child via text message or phone call.
(g) Be permitted to attend any school, sporting or other extracurricular activity for the child in the nature of which parents are usually invited to attend.
9. Each party is restrained from denigrating or permitting any other person to denigrate the other party or any member of the other party’s household in the presence or hearing of the child.
10. Each party is restrained from physically chastising the child or allowing any other person to do so.
11. The father is restrained from driving past the mother’s residence.
12. Each party shall do all things and sign all documents necessary to authorise and direct any school attended by the child to discuss with each parent the child’s school attendance and progress, furnish reports, photos and copies of any correspondence, newsletter or other written material produced by the school and distributed to parents or relating to the child specifically and both parties shall be entitled to fully participate in any and all activities at the school or connected with the school.
13. Either party be permitted to travel outside the Commonwealth of Australia with the child, and in the event of proposed overseas travel:
(a) The travelling party shall notify the other party of an intention to travel at least 8 weeks prior to the departure date;
(b) At that time, the travelling party shall provide to the other party a printed itinerary and copy of return travel tickets for both the travelling party, and the child;
(c) At least one week prior to the departure, the travelling party shall provide to the other party a telephone contact number upon which the travelling party and child can be contacted, whilst overseas;
(d) If the travelling party is the father, the mother shall provide the child’s passport to the father at least two weeks prior to the departure date and the father shall return the passport to the mother within two weeks of return to Australia.
14. At the request of either of them and within a one-year period prior to the expiry of the child’s current passport, the parties shall do all things and sign all documents to cause a new passport to be issued for the child and:
(a) The parties shall share the cost of the passport equally;
(b) The passport shall be retained in the mother’s possession, subject to provision of it to the father, to enable travel, in accordance with the terms of 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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