FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Welsh & Welsh [2022] FedCFamC2F 779
File number(s): MLC 5422 of 2017 Judgment of: JUDGE HARLAND Date of judgment: 15 June 2022 Catchwords: FAMILY LAW – parenting – competing live with applications – whether or not the children are at risk of harm in either parent’s home – parental responsibility – geographical distance Legislation: Family Law Act 1975 (Cth), pt VII, ss 60B, 60CA, 60CC, 61DA 64, 65D, 65DAA 67Z. Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
MRR v GR [2010] 240 CLR 461
Re G [2000] FamCA 462
Welsh & Welsh [2021] FCCA 149
Waterford & Waterford [2013] FamCA 33
Division: Division 2 Family Law Number of paragraphs: 315 Date of hearing: 25, 27, 28 January 2022, 4, 7, 11 February 2022, 2, 4 and 31 March 2022 via teams, 30 and 31 May 2022 in person Place: Melbourne Counsel for the Applicant: Mr Glezakos Solicitor for the Applicant: JS Law Counsel for the Respondent: In person ORDERS
MLC 5422 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WELSH
Applicant
AND: MS WELSH
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
15 JUNE 2022
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The Father have sole parental responsibility for the children:
(a)X, born in 2013;
(b)Y, born in 2013; and
(c)Z, born in 2014
(“the children”) PROVIDED ALWAYS THAT the Father keep the Mother informed of significant long term decisions that he makes in relation to the child and actively seeks the Mother’s input on such issues.
3.For the purpose of Order 2 hereof before any such long term decisions are made in respect of the children:
(a)the Father shall advise the Mother by email of his proposal relating to the children;
(b)if the Mother wishes to comment on the Father’s proposal (or if the Mother has any proposal she wishes to make relating to the children on this issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by one email (to the email address from which the Mother sent her communication) of her views;
(c)upon receipt of any comment or proposal by the Mother, the Father shall give consideration to the Mother’s views;
(d)after the Father has considered the Mother’s comments, he shall make a decision and advise the Mother by email or SMS text message of the outcome immediately after making that decision; and
(e)if the Mother does not respond by email as provided in order 3(b) hereof, the Father shall be entitled to presume that the Mother does not wish to be involved and he may decide the issue.
4.The children live with the Father.
5.The children spend time with the Mother as follows:
(a)Each alternate weekend from the conclusion of school Friday, or 3.00pm if a non-school day, to 5.00pm Sunday.
(b)Each Wednesday from the conclusion of school until 7.00pm in…
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CaseChat Overview and Summary
The court ruled that Mr Welsh would have sole parental responsibility for the children, with certain conditions to ensure Ms Welsh remained involved in significant decisions regarding the children. The children were to live primarily with Mr Welsh, but Ms Welsh was granted specific visitation times. The court detailed the arrangements for handovers and the obligations regarding communication between the parents. It also outlined the conditions for both international and interstate travel, requiring advance notice and consent from the non-travelling parent. The court emphasised the importance of the parents keeping each other informed about the children's health, education, and any concerns raised by their schools.
The final orders included provisions for the children's living arrangements, visitation schedules, and specific procedures for international and interstate travel. The court also mandated that the parents must inform each other of any changes in contact details and certain health-related information. Additionally, the parents were restrained from certain activities that could be detrimental to the children, including denigrating the other parent in front of the children and discussing the proceedings with them. The court stressed the importance of resolving any future disputes through family dispute resolution before resorting to further litigation.
Orders
Orders of the court
MLC 5422 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR WELSH
Applicant
AND:
MS WELSH
Respondent
ORDER MADE BY:
JUDGE HARLAND
DATE OF ORDER:
15 JUNE 2022
THE COURT ORDERS THAT:
1. All previous parenting orders be discharged.
2. The Father have sole parental responsibility for the children:
(a) X, born in 2013;
(b) Y, born in 2013; and
(c) Z, born in 2014
(“the children”) PROVIDED ALWAYS THAT the Father keep the Mother informed of significant long term decisions that he makes in relation to the child and actively seeks the Mother’s input on such issues.
3. For the purpose of Order 2 hereof before any such long term decisions are made in respect of the children:
(a) the Father shall advise the Mother by email of his proposal relating to the children;
(b) if the Mother wishes to comment on the Father’s proposal (or if the Mother has any proposal she wishes to make relating to the children on this issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by one email (to the email address from which the Mother sent her communication) of her views;
(c) upon receipt of any comment or proposal by the Mother, the Father shall give consideration to the Mother’s views;
(d) after the Father has considered the Mother’s comments, he shall make a decision and advise the Mother by email or SMS text message of the outcome immediately after making that decision; and
(e) if the Mother does not respond by email as provided in order 3(b) hereof, the Father shall be entitled to presume that the Mother does not wish to be involved and he may decide the issue.
4. The children live with the Father.
5. The children spend time with the Mother as follows:
(a) Each alternate weekend from the conclusion of school Friday, or 3.00pm if a non-school day, to 5.00pm Sunday.
(b) Each Wednesday from the conclusion of school until 7.00pm in the City M area, unless the Mother has advised the Father via text or telephone message that she is unavailable, with such notification to be given 24 hours or more before the Mother’s time is scheduled to begin;
(c) For the first week of the mid-term school holidays from 3.30pm Friday at the conclusion of school until midday Sunday of the following week;
(d) During the long summer holidays, each alternate week from 10.00am on the first Monday of the month until 10.00am on the following Monday;
(e) On each of the children’s birthdays for no less than 2 hours with the birthday child, at times as agreed in writing between the parties and failing agreement from 5.00pm until 7.00pm.
(f) For Christmas 2022, from 3.00pm Boxing Day until 3.00pm on 27 December 2022 and each alternate year thereafter;
(g) For Christmas 2023, from 3.00pm Christmas Eve until 3.00pm Boxing Day and each alternate year thereafter; and
(h) As otherwise agreed between the parties in writing.
6. For the purpose of changeover, the Mother shall collect the children from school or at the McDonald’s closest to the Father’s Residence at the commencement of her time, and the Father shall collect the children from the McDonald’s closest to the Mother’s residence at the conclusion of her time, unless as otherwise agreed between the parties in writing.
7. For the purpose of Order 5(b) the Applicant Father shall collect the children from the McDonald’s closest to his residence at the conclusion of the Respondent Mother’s time, unless as otherwise agreed between the parties in writing.
International Travel
8. Either party may take any of the children outside the Commonwealth of Australia for holidays.
9. If either party wishes to travel with the child outside the Commonwealth of Australia, the departing party shall:
(a) Provide the non-travelling party with no less than twenty-eight (28) days prior written notice (‘Notice’) of the proposed travel and obtain the non-travelling party’s written consent with such consent not to be unreasonably withheld.
(b) For the purposes of paragraph 6.1, the Notice to include the following details:
(i) The period of proposed absence from the Commonwealth of Australia
(ii) A copy of the travel itinerary or any other documentation evidencing the proposed destination(s) and the dates and times of the departure and return; and
(iii) All complete addresses, telephone numbers or other contact details where the non-travelling party can contact the children during the travel period.
10. Both parties and/or their agents be retrained by injunction and an injunction be granted restraining the parties from removing and/or causing or allowing any of the children to be removed from the Commonwealth of Australia without giving said prior Notice to the other party and obtaining written consent from the other party.
THE COURT ORDERS BY CONSENT THAT:
11. The parties shall keep each other informed at all times of their residential address, mobile telephone number/s and email address and advise of any such changes 48 hours prior to such changes.
12. The parties advise each other by telephone upon becoming aware of any of the following in relation to any of the children:
(a) Any illness or injury requiring a medical examination or medical consultation;
(b) Any illness requiring the provision to any of the children of any medicine prescribed by their General Practitioner;
(c) Any hospital attendance for examination, consultation, or treatment;
(d) Any dental treatment; and
(e) Any issue of concern raised with either parent by any of the children’s school/s in relation to any of the children’s education, welfare, or behaviour.
13. Both parents be restrained by injunction and the injunction hereby be granted, restraining each party from the following:
(a) Organising events for any of the child/ren during the period the child/ren are not in their respective care without prior written consent of the other party;
(b) Denigrating the other party or member of the other party’s family in the presence of or within hearing of any of the children and the parties shall take all reasonable steps necessary to ensure that no other person denigrates the other party or members of the other party’s family in the presence or within hearing of any of the children; and
(c) Discussing these proceedings in the presence of or within the hearing of any of the children.
14. In the event the parties are unable to reach an agreement about parenting arrangements pursuant to these Orders, the parties must attend (in person or by telephone) upon an agreed, appropriately qualified Family Dispute Resolution Practitioner or Counsellor in an attempt to resolve those issues without the recourse to further litigation.
Interstate Travel
15. Either party may take any of the children outside the State of Victoria for holidays.
16. If either party wishes to travel with the child outside the State of Victoria, the departing party shall:
(a) Provide the non-travelling party with no less than twenty-eight (28) days prior written notice (‘Notice’) of the proposed travel and obtain the non-travelling party’s written consent with such consent not to be unreasonably withheld.
(b) For the purposes of paragraph 6.1, the Notice to include the following details:
(i) The period of proposed absence from the State of Victoria;
(ii) A copy of the travel itinerary or any other documentation evidencing the proposed destination(s) and the dates and times of the departure and return; and
(iii) All complete addresses, telephone numbers or other contact details where the non-travelling party can contact the children during the travel period.
17. Both parties and/or their agents be retrained by injunction and an injunction be granted restraining the parties from removing and/or causing or allowing any of the children to be removed from the State of Victoria without giving said prior Notice to the other party and obtaining written consent from the other party.
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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