FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Shams & Alkaios (No 2) [2024] FedCFamC2F 620
File number(s): MLC 13363 of 2021 Judgment of: JUDGE GLASS Date of judgment: 20 May 2024 Catchwords: FAMILY LAW – PARENTING - Whether 11 and 8 year old boys should live with their father in Victoria or their mother in Queensland Legislation: Family Law Act 1975 (Cth) s 4, 4AB, 60B, 60CA, 60CC, 61CA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 7.06
Cases cited: Deiter & Deiter [2011] FamCAFC 82
Eastley & Eastley (2022) FLC 94-094
Grier & Grier (2023) FLC 94-135
Jurchenko & Foster (2014) FLC 93-598
Kramer & Another & Ward (2017) FLC 93-817
Lysons & Lysons (2019) FLC 93-891
Maclean & Greenwood (2022) FLC 94-117
Muldoon & Carlyle (2012) FLC 93-513
Oberlin & Infeld (2021) FLC 94-017
Searson & Searson (2017) FLC 93-788
U v U (2002) 211 CLR 238
Division: Division 2 Family Law Number of paragraphs: 125 Date of hearing: 6-8 May 2024 Place: Melbourne Counsel for the Applicant: Mr Chislett Solicitor for the Applicant: MacGregor Barristers & Solicitors Counsel for the Respondent: Ms Mallet KC Solicitor for the Respondent: Westminster Lawyers ORDERS
MLC 13363 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SHAMS
Applicant
AND: MR ALKAIOS
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1.The parties make joint decisions in relation to all major long-term issues in relation to the Children, X, born 2013, and Y, born 2016.
2.In the event that the Mother remains living interstate, the Children live with the Father and spend time with the Mother during school terms as follows:
(a)In Melbourne, on the second and eighth weekend of each school term, from the conclusion of school Friday until the commencement of school Monday (or Tuesday if Monday is a public holiday); and
(b)In Queensland, for the fifth weekend of each school term, from the first available flight after 7.00pm in Melbourne on Friday, with the children to return to the Father’s care in Melbourne by no later than 5.00pm on Sunday (or Monday if that day is a public holiday).
3.In the event that the Mother returns to live in Metropolitan Melbourne, the Children live with the parties in a week on week off in an equal time arrangement, with changeover to occur from the conclusion of school on Friday (or 3.00pm on non-school days).
4.The Children spend time with the parties during school holidays as follows:
(a)With the Mother, during each school term holidays, from 8.00am on the day following the last day of school term until 5.00pm on the middle Saturday of the holidays;
(b)With the Mother, for the first half of the long summer holidays in odd numbered years from 8.00am on the day following the last day of school until 5.00pm on the middle Saturday, and in even numbered years for the second half from 5.00pm on the middle…
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- AGLC
- Shams & Alkaios (No 2) [2024] FedCFamC2F 620
- Case
- [2024] FedCFamC2F 620
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court involved determining the children's primary residence, the allocation of time between the parents, and the logistics of travel and communication given the geographical distance between the parents. The court had to balance the need for stability and continuity in the children's lives against the potential benefits of maintaining a relationship with both parents.
Judge Glass, after considering evidence and submissions from both parties, determined that the children's best interests would be served by a shared care arrangement with specific guidelines for visitation and communication. The court emphasised the importance of maintaining a close relationship between the children and both parents, while also ensuring that the children's educational and social stability were not unduly disrupted. The order provides for detailed schedules for the children's time with each parent, including specific arrangements for school terms and holidays, and mandates that both parents facilitate regular and meaningful communication between the children and the non-residential parent. The court also included provisions to manage travel logistics and ensure the children's safety and well-being.
In summary, the court ordered that the children live primarily with their father in Victoria but spend considerable time with their mother in Queensland during school terms and holidays. The order includes specific provisions for changeovers, communication, travel, and medical care to ensure the children's welfare and to maintain a harmonious co-parenting relationship. The detailed arrangements reflect a commitment to the children's best interests, providing them with stability, continuity, and the opportunity to maintain close relationships with both parents.
Orders
Orders of the court
MLC 13363 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SHAMS
Applicant
AND:
MR ALKAIOS
Respondent
ORDER MADE BY:
JUDGE GLASS
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1. The parties make joint decisions in relation to all major long-term issues in relation to the Children, X, born 2013, and Y, born 2016.
2. In the event that the Mother remains living interstate, the Children live with the Father and spend time with the Mother during school terms as follows:
(a) In Melbourne, on the second and eighth weekend of each school term, from the conclusion of school Friday until the commencement of school Monday (or Tuesday if Monday is a public holiday); and
(b) In Queensland, for the fifth weekend of each school term, from the first available flight after 7.00pm in Melbourne on Friday, with the children to return to the Father’s care in Melbourne by no later than 5.00pm on Sunday (or Monday if that day is a public holiday).
3. In the event that the Mother returns to live in Metropolitan Melbourne, the Children live with the parties in a week on week off in an equal time arrangement, with changeover to occur from the conclusion of school on Friday (or 3.00pm on non-school days).
4. The Children spend time with the parties during school holidays as follows:
(a) With the Mother, during each school term holidays, from 8.00am on the day following the last day of school term until 5.00pm on the middle Saturday of the holidays;
(b) With the Mother, for the first half of the long summer holidays in odd numbered years from 8.00am on the day following the last day of school until 5.00pm on the middle Saturday, and in even numbered years for the second half from 5.00pm on the middle Saturday until 5.00pm the day immediately prior to school term resuming;
(c) With the Father at all other times; and
(d) As may otherwise be agreed between the parties in writing by no later than 28 days prior to the holidays.
Changeover
5. Changeover take place:
(a) On school days at Suburb B School; and
(b) On non-school days, the parent whose time with the Children is commencing shall collect from the other parent’s home.
6. For the purpose of the Children’s travel to and from Queensland pursuant to these Orders, the parties shall equally share the costs with:
(a) The Mother paying the cost of travelling to Queensland at first instance and the Father refunding her 50% within 14 days; and
(b) The Father paying the cost of the Children returning to Melbourne from City C at first instance and the Mother refunding him 50% within 14 days.
Communication
7. Each parent be at liberty to contact the Children by telephone or video call when they are in the other parent’s care, as follows:
(a) On each Monday and Wednesday with the parent with whom they are spending time with to facilitate a telephone call to the other’s mobile between 7.30pm and 8.00pm;
(b) With the other parent to refrain from interfering or interrupting the call, or recording it in any way; and
(c) Each party otherwise facilitate the Children contacting the other parent at any reasonable time should the Children request it.
8. Both parties keep each other informed of their respective telephone numbers and email addresses and notify each other immediately of any change to those contact details.
9. Each parent keep the other informed of their current residential address and in the event that one parent intends to move, provide the other parent with 28 days’ prior notice of their change of address.
10. The parties shall communicate with one another regarding the Children in the first instance via the Our Family Wizard Parenting App.
Restraints
11. Each party be and is hereby restrained from:
(a) Discussing with the Children or with any other person in the Children’s presence details of the family law matter and these proceedings;
(b) Denigrating, abusing, belittling, rebuking or insulting the other party to the Children or within their presence or hearing; or
(c) Causing a third party to act in non-compliance with these Orders.
12. The Mother be restrained from removing the Children from the State of Victoria and from relocating the Children’s residence more than 10 kilometres away from Suburb B.
13. The parties be restrained by injunction from removing the Children’s enrolment from Suburb B School.
Education
14. Unless otherwise agreed between the parents in writing, the Children remain enrolled at Suburb B School for the balance of their primary school education.
15. Unless otherwise agreed between the parents in writing, the Children attend D School for their secondary education.
Travel
16. The Father retain the Children’s passports unless the Children are travelling with the Mother pursuant to these Orders.
17. Each parent be permitted to travel overseas for a holiday with the Children for a block of up to 3 weeks once per calendar year on the following terms and conditions:
(a) The travelling parent shall provide not less than 30 days’ written notice to the non travelling parent as to the travel;
(b) No less than 14 days prior to the travel the travelling parent shall provide to the non travelling parent a travel itinerary including the address where the Children will be staying for the duration of the holiday, the flight number(s) and the airline(s) the Children will be travelling with; a copy of the Children’s travel insurance, copies of the Children’s return airfare and emergency contact numbers;
(c) Any period of travel shall not take place between 22 and 29 December, unless otherwise agreed;
(d) The Children are not to spend more than 3 weeks without spending their usual time with the non travelling parent unless agreed in writing with the travelling parent;
(e) Each parent shall ensure the travel shall, as far as is practicable, take place during school holidays unless otherwise agreed in writing;
(f) The Children shall have all immunisations as recommended by the General Practitioner prior to such travel;
(g) The travel take place provided that there are no Australian government directives/restrictions preventing or advising against the travel;
(h) The travelling parent shall ensure the Children communicate with the non travelling parent at least once every other day by video call at times to be agreed and in the absence of agreement at 7.00pm AEST every second day of the holiday; and
(i) The Father do all acts and things to ensure that in the event the Mother is the travelling parent, he releases the children’s passports to the Mother not less than 7 days prior to the travel and the Mother shall return the passports to the Father within 48 hours of her return.
Medical
18. Each parent keep the other appraised of any medical or allied health practitioner treating the child/Children and each parent is at liberty to liaise with the said professional.
19. In the event of a medical emergency involving one or both of the Children, including but not limited to serious illness, accident or hospitalisation, the parent with the care of the Children:
(a) Immediately contact the other parent by telephone and if unanswered, via text message or email; and
(b) As soon as practicable, provide the other parent with all documentation and information in their possession regarding the illness or incident.
Other
20. Within 30 days of the date of these Orders, the Mother transfer to the Father’s nominated bank account her half share of the costs of the Family Report prepared by Ms E.
21. All previous parenting Orders be discharged.
22. All extant application are dismissed.
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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