FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Tyrrell & Tyrrell [2023] FedCFamC2F 1604
File number(s): MLC 14240 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 29 November 2023 Catchwords: FAMILY LAW – final parenting orders – equal shared parental responsibility – dispute over time with father – where both parties seek to relocate – mother seeking week about arrangement – father seeking two out of three weekends – father rely upon family report recommendations – where parties agreed upon children’s education prior hearing – where parties agreed on children’s extracurricular activities prior to hearing Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DA Cases cited: MRR v GR 240 CLR 461 Division: Division 2 Family Law Number of paragraphs: 96 Date of hearing: 28-29 November 2023 Place: Bendigo Solicitor for the Applicant: Cathryn Shiels Lawyers Counsel for the Respondent: Mr Gelzakos Solicitor for the Respondent: Cosgriff Lawyers ORDERS
MLC 14240 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TYRRELL
Applicant
AND: MS TYRRELL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS BY CONSENT THAT:
Parental Responsibility
1.The parties have equal shared parental responsibility for the children of the marriage:
(a)X born in 2012 (“X”); and
(b)Y born in 2014 (“Y”)
(“the children”).
Care Arrangements
2.The children live with the Mother.
AND THE COURT ORDERS THAT:
3.The children spend time with the Father:
(a)During school terms, each alternate week from the conclusion of school (or 3.30pm if not a school day) Thursday until the commencement of school (or 9.00am if not a school day) Monday;
AND THE COURT ORDERS BY CONSENT THAT:
(a)For one half of the school term holidays by agreement, or failing agreement, for the first half;
(b)For one half of the long summer holidays by agreement, or failing agreement on an alternating ‘week-about’ basis, commencing in the first week;
(c)For Christmas from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years, and from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;
(d)During Easter from 5.00pm on the Thursday preceding Good Friday until 5.00pm Easter Saturday in even numbered years, and from 5.00pm Easter Saturday until 5.00pm Easter Monday in odd numbered years;
(e)Should Father’s Day fall on a weekend when the children are not in the Father’s care, from 5.00pm Saturday until the commencement of school (or 9.00am if not a school day) Monday on the Father’s Day weekend; and
(f)At such further and other times as may be agreed between the parties.
4.The children’s time with the Father pursuant to Order 3 hereof be suspended:
(a)For Christmas from 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years, and from 3.00pm Christmas Day until 3.00pm Boxing Day in odd numbered years;
(b)During Easter from 5.00pm on the Thursday preceding Good Friday until 5.00pm Easter Saturday in odd numbered years, and from 5.00pm Easter Saturday until 5.00pm Easter Monday in even numbered years;
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CaseChat Overview and Summary
The court deliberated on the parties' competing relocation plans, their respective parenting arrangements, and the children's best interests. The court considered the recommendations of the family report and the agreements made by the parties on the children's education and extracurricular activities. Ultimately, the court awarded equal shared parental responsibility to both parties and outlined a detailed schedule for the children's time with each parent. The court also made specific provisions for time with each parent during school term holidays, long summer holidays, and significant public holidays such as Christmas and Easter. Furthermore, the court addressed the children's birthdays, travel arrangements, and communication between the parents and children.
The court's orders established a comprehensive parenting plan, including detailed arrangements for the children's time with each parent, communication, and various logistical aspects of their upbringing. The court mandated that the children spend alternate weeks with the father during school terms and outlined specific arrangements for school term holidays, long summer holidays, and public holidays. The court also addressed the children's birthdays, travel plans, and the parents' communication with each other and the children. The court further imposed restrictions on the parents' communication with each other and the children to ensure a healthy co-parenting environment. The final orders also included provisions for the children's education, extracurricular activities, and the exchange of information between the parents.
The court's orders were made by consent and incorporated detailed provisions for the children's care, communication, and various aspects of their upbringing. The court ensured that the children's best interests were at the forefront of its decision-making process, taking into account the parents' relocation plans, the family report's recommendations, and the agreements reached by the parties on the children's education and extracurricular activities. The comprehensive nature of the orders reflects the court's commitment to providing a stable and supportive environment for the children as they navigate their parents' separation.
Orders
Orders of the court
MLC 14240 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR TYRRELL
Applicant
AND:
MS TYRRELL
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
29 NOVEMBER 2023
THE COURT ORDERS BY CONSENT THAT:
Parental Responsibility
1. The parties have equal shared parental responsibility for the children of the marriage:
(a) X born in 2012 (“X”); and
(b) Y born in 2014 (“Y”)
(“the children”).
Care Arrangements
2. The children live with the Mother.
AND THE COURT ORDERS THAT:
3. The children spend time with the Father:
(a) During school terms, each alternate week from the conclusion of school (or 3.30pm if not a school day) Thursday until the commencement of school (or 9.00am if not a school day) Monday;
AND THE COURT ORDERS BY CONSENT THAT:
(a) For one half of the school term holidays by agreement, or failing agreement, for the first half;
(b) For one half of the long summer holidays by agreement, or failing agreement on an alternating ‘week-about’ basis, commencing in the first week;
(c) For Christmas from 3.00pm Christmas Eve until 3.00pm Christmas Day in odd numbered years, and from 3.00pm Christmas Day until 3.00pm Boxing Day in even numbered years;
(d) During Easter from 5.00pm on the Thursday preceding Good Friday until 5.00pm Easter Saturday in even numbered years, and from 5.00pm Easter Saturday until 5.00pm Easter Monday in odd numbered years;
(e) Should Father’s Day fall on a weekend when the children are not in the Father’s care, from 5.00pm Saturday until the commencement of school (or 9.00am if not a school day) Monday on the Father’s Day weekend; and
(f) At such further and other times as may be agreed between the parties.
4. The children’s time with the Father pursuant to Order 3 hereof be suspended:
(a) For Christmas from 3.00pm Christmas Eve until 3.00pm Christmas Day in even numbered years, and from 3.00pm Christmas Day until 3.00pm Boxing Day in odd numbered years;
(b) During Easter from 5.00pm on the Thursday preceding Good Friday until 5.00pm Easter Saturday in odd numbered years, and from 5.00pm Easter Saturday until 5.00pm Easter Monday in even numbered years;
(c) Should Mother’s Day fall on a weekend when the children are not in the Mother’s care, from 5.00pm Saturday until the commencement of school (or 9.00am if not a school day) Monday on the Mother’s Day weekend.
5. Despite anything to the contrary herein the children will spend up to two hours with each parent on the children’s respective birthdays by agreement.
6. If NAIDOC week falls during a period the children are with the Father, his time will be suspended for that period and he shall be afforded make-up time by agreement between the parties.
Changeovers
7. Changeovers are to be at the children’s school/s on school days or if it is a non-school day, at B Park in Town C, or otherwise by written agreement between the parties.
Communication
8. The parties each facilitate the children communicating with the other parent by electronic means (including by telephone, videocall, social media or messaging platforms) whilst in their respective care at all reasonable times requested by the children.
9. Each of the parties be permitted to communicate with the children by electronic means (including by telephone or videocall) on Tuesdays and Fridays by placing a call to the other parent’s nominated telephone number by no later than 6.00pm on such days.
10. The parties shall communicate with respect to the children directly by either text message or telephone call with such communication to be via the parents' nominated telephone numbers only.
Travel
11. Each party be permitted to take the children on a holiday for up to 14 days each year and that each party provide to the other party with at least 30 days’ notice in writing:
(a) Of their intention to go on a holiday;
(b) A detailed itinerary including flight details if applicable and accommodations for the duration of travel; and
(c) Contact details for the children for the duration of travel.
12. Upon the written request of either parent the parties will do all things required and sign all documents to cause the children to obtain passports, with the Father to pay for the costs of the passports and any renewal thereof, and once issued the passports will be held by the Father save for the purpose of any travel with the Mother, with the Mother to be provided with a colour copy thereof forthwith upon receipt of passports by the Father.
13. In the event that the Mother intends to travel internationally with the children, the Father shall provide the children’s passports to the Mother not less than 21 days prior to such travel and the Mother shall return them to the Father within 14 days of the children’s return to Australia.
Schooling and Extra Curricular Activities
14. Both parties do all acts and things so as to enrol:
(a) X to commence year 7 at D School, Town C in 2024;
(b) Y to commence grade 4 at E School, Town C in 2024; and
(c) Y to commence year 7 at D School, Town C in 2027, or such other year as she may commence secondary school.
15. Neither party enrol either of the children in any school save as provided for at Order 14 hereof, save and except with the express written consent of the other party.
16. Unless otherwise agreed by the parties in writing, the parties do all such acts and things and sign all documents necessary for the children to participate in one extra-curricular sporting activity in the Town C area, being, unless otherwise agreed by the parties, sports for X and for Y.
17. The parties be, and are hereby, restrained from enrolling the children in any extra-curricular activity which is to occur in the time the children are to spend with the other party without the written consent of the other party.
18. The parties shall each ensure any school the children may attend is authorised to provide school reports, newsletters and applications for school photographs to both parents.
19. Each party is at liberty to attend all school, sporting and extracurricular events it is usual for parents to attend.
Exchange of Information
20. The parties shall keep each other informed at all times of their respective residential addresses and contact telephone numbers.
21. Each parent shall ensure that other, as soon as practicable, is notified of any injury, illness, hospital visits or medication prescribed for the children including in respect of mental health issues.
Restraints
22. Each party be and hereby is restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, or their respective partners within the hearing or the presence of the children or any of them.
23. The parties be and are hereby restrained from permitting the children to have any communication or come into contact with Mr F.
24. All extant applications and responses thereto be otherwise dismissed.
AND THE COURT NOTES THAT:
A. It is the intention of the Mother to reside with the children in Town G.
B. It is the intention of the Father to reside in the City H/Town J/Town K area.
C. Pursuant to s62B and s65DA(2) 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 the Annexure 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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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