FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
White & Kenney [2022] FedCFamC2F 1633
File number(s): ADC 4487 of 2021 Judgment of: JUDGE PARKER Date of judgment: 28 November 2022 Catchwords: FAMILY LAW – PARENTING - where there is poor parental communication – where there is a lack of parental cooperation – where the parties are unable to maintain a positive co-parenting relationship – in best interests of child to remain in primary care of mother and spend substantial and significant time with father – schooling – injunction. Legislation: Evidence Act 1995 (Cth), s140
Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 65DAA, 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), r 12.13
Cases cited: Bennett & Bennett [2001] FamCA 462; (2001) FLC 93-088
Flanagan & Hancock (2002) FLC 93-102
Korban & Korban [2009] FamCAFC 143
Mazorski & Albright [2007] FamCA 52
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Re G: Children’s Schooling [2000] FamCA 462; (2000) FLC 93-025 at [91]-[92]
Sigley & Evor [2011] FamCAFC 22
Willmore & Menendez [2022] FedCFamC1A 73
Division: Division 2 Family Law Number of paragraphs: 251 Date of last submission/s: 17 October 2022 Date of hearing: 6, 7 and 10 October 2022 Place: Adelaide Counsel for the Applicant: Mr Robinson Solicitor for the Applicant: Websters Lawyers Counsel for the Respondent: Ms Betro Solicitor for the Respondent: Nicole Kelly Legal ORDERS
ADC 4487 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WHITE
Applicant
AND: MS KENNEY
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
28 NOVEMBER 2022
UPON NOTING:
A.Pursuant to sections 65DA(2) and 62B 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 and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
THE COURT ORDERS THAT:
1.Order 2 of the orders made on 28 June 2022 be discharged.
2.The orders made on 28 June 2022 otherwise remain in full force and effect.
3.The child X born 2018 (‘the child’) live with the Mother.
4.The child spend time with the Father as follows:
(a)From the date of these orders until the child commences primary school in 2024:
(i)Each alternate weekend from the conclusion of childcare/kindergarten (or 4:30pm if a non-childcare/kindergarten day) on Friday until 5:00pm on Sunday, to continue in the same cycle as the arrangements in place immediately prior to the making of these orders; and
(ii)Each other week from the conclusion of childcare/kindergarten (or 4:30pm if a non-childcare/kindergarten day) on Wednesday until the commencement of childcare/kindergarten (or 9:00am if a non‑childcare/kindergarten day) on Thursday.
(b)From the time the child commences primary school in 2024 until the commencement of the 2025 school year:
(i)During school terms, each alternate weekend from the…
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CaseChat Overview and Summary
The primary legal issue before the court was to determine the most suitable parenting arrangement for the child, considering the evidence of poor communication and lack of cooperation between the parents. The court had to assess whether the existing arrangements were in the best interests of the child, and if not, what changes were necessary. The court also had to consider the child's educational needs and stability, as well as the father's wish for increased contact time with the child.
The court found that the existing arrangements were not conducive to the child's best interests due to the ongoing issues between the parents. It was determined that the child should remain in the primary care of the mother, but with increased contact time with the father. The court outlined specific arrangements for contact time, considering the child's current and future schooling commitments. The court emphasised the importance of the child's education and stability, and the need for the parents to work together to facilitate this. The court also highlighted the need for the parents to cooperate in making decisions regarding the child's schooling.
The court made orders for the child to live primarily with the mother, with specific arrangements for contact time with the father, taking into account the child's schooling. The court also ordered that the child be enrolled in and attend specified early learning and primary school. The court dismissed all other applications made by the parties.
Orders
Orders of the court
ADC 4487 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR WHITE
Applicant
AND:
MS KENNEY
Respondent
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
28 NOVEMBER 2022
UPON NOTING:
A. Pursuant to sections 65DA(2) and 62B 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 and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
THE COURT ORDERS THAT:
1. Order 2 of the orders made on 28 June 2022 be discharged.
2. The orders made on 28 June 2022 otherwise remain in full force and effect.
3. The child X born 2018 (‘the child’) live with the Mother.
4. The child spend time with the Father as follows:
(a) From the date of these orders until the child commences primary school in 2024:
(i) Each alternate weekend from the conclusion of childcare/kindergarten (or 4:30pm if a non-childcare/kindergarten day) on Friday until 5:00pm on Sunday, to continue in the same cycle as the arrangements in place immediately prior to the making of these orders; and
(ii) Each other week from the conclusion of childcare/kindergarten (or 4:30pm if a non-childcare/kindergarten day) on Wednesday until the commencement of childcare/kindergarten (or 9:00am if a non‑childcare/kindergarten day) on Thursday.
(b) From the time the child commences primary school in 2024 until the commencement of the 2025 school year:
(i) During school terms, each alternate weekend from the conclusion of school (or 4:30pm if a non-school day) on Thursday until the commencement of school (or 9:00am if a non-school day) on Monday, to commence on the first Thursday of each school term; and
(ii) Half of each school holiday period at times to be agreed, and failing agreement, on a week-about basis commencing on the last day of the school term, with the child to spend the first week of the holidays with the parent in whose care he would otherwise have been for the first weekend of the school holidays.
(c) From the commencement of the 2025 school year:
(i) During school terms, each alternate weekend from the conclusion of school (or 4:30pm if a non-school day) on Thursday until the commencement of school (or 9:00am if a non-school day) on Tuesday, to commence on the first Thursday of each school term; and
(ii) Half of each school holiday period at times to be agreed, and failing agreement, on a week-about basis commencing on the last day of the school term, with the child to spend the first week of the holidays with the parent in whose care he would otherwise have been for the first weekend of the school holidays.
(d) Such further and other times as may be agreed between the parties in writing.
5. The parties each do all acts and things required to ensure that the child is enrolled in and attends B Early Learning Centre in City C for kindergarten.
6. The parties each do all acts and things required to ensure that the child is enrolled in and attends D School, City C for his primary school education.
7. All extant applications are otherwise 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).
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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