FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)Enright & Normands [2021] FedCFamC2F 2
File number(s): SYC 1162 of 2019 Judgment of: JUDGE MORLEY Date of judgment: 3 September 2021 Catchwords: FAMILY LAW – parenting – interim hearing on the papers – application by Father for child to commence overnight time with Father – application by Mother for child’s time with Father to be reduced – some evidence of child resisting at changeover – Court finds it to be in the best interests of the child to commence overnight time with Father. Legislation: Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 61DA, 62G, 65D, 65DAA, 65DAB, 65DAE, 69ZT, 79.
Federal Circuit Court of Australia, Notice: Communicating with Judges’ Chambers, June 2011.
Federal Circuit Court Rules 2001 (Cth) div 13.3, r 16.01.
Cases cited: A & A & The Child Representative (1998) 22 FamLR 756
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Goode & Goode (2006) FLC 93-286
Grella & Jamieson [2017] FamCAFC 21
Johnson & Page (2007) FLC 93-344
M & M (1988) FLC 91-973
Marvel & Marvel (2010) 240 FLR 367
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92
MRR & GR [2010] HCA 240
Napier & Hepburn (2006) FLC 93-303
Newett & Newett [2020] FamCAFC 76
SS & AH [2010] FamCAFC 13, [100]
Division: Division 2 Family Law Date of last submission/s: 12 July 2021 Date of hearing: In Chambers Number of paragraphs: 260 Place: Sydney Solicitor for the Applicant: Mr Mokhtar of AMG Law Firm Solicitor for the Respondent: Mr Blumberg of Blumberg Family Lawyers Solicitor for the Independent Children's Lawyer: Mr Hearl of Delaney Lawyers ORDERS
SYC 1162 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ENRIGHT
Applicant
AND: MS NORMANDS
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged except for:
(a)Order 1 made on 9 May 2019;
(b)Order 3 of the orders made by consent on 20 September 2019; and
(c)Order 4 of the orders made by consent on 20 September 2019.
2.That the child live with her Mother.
3.That the child spend time with her Father:
(a)For four weeks from the date of orders, on Wednesdays from 9:00AM to 6:00PM and on Saturdays from 9:00AM to 6:00PM;
(b)Thereafter, for a period of six months, on Wednesdays from 9:00AM to 6:00PM, and from 9:00AM on Saturday until 12:00PM on Sunday;
(c)Thereafter, for a period of six months, on Wednesdays from 9:00AM to 6:00PM and from 9:00AM on Saturday to 5:00PM on Sunday;
(d)Thereafter, from 9:00AM on Wednesdays until 9:00AM on Thursdays and from 9:00AM on Saturday to 5:00PM on Sunday;
(e)On Father’s Day, from 9:00AM until 5:00PM; and
(f)On the Father’s birthday, from 9:00AM until 5:00PM.
4.That during the following times, the Father’s time with the child is suspended and the child shall spend time with the Mother:
(a)On Mother’s…
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CaseChat Overview and Summary
The court considered the evidence and submissions presented by both parties. The court found that while there was some evidence of X resisting at changeover, the overall welfare and best interests of X would be served by the introduction of overnight stays with Mr Enright. The court held that the proposed arrangement would provide X with the opportunity to spend more time with her father, which was in her best interests. The court also noted that both parties were committed to following the recommendations of X’s treating doctors and allied health specialists, and both parties were directed to engage with their mental health treaters and follow all recommendations in relation to their mental health care. The court further found that it was in the best interests of X to have a structured and predictable parenting arrangement, and the proposed arrangement provided this.
The court ordered that all previous parenting orders be discharged, except for certain specified orders. The court ordered that X live with Ms Normands and spend time with Mr Enright according to a detailed schedule, including overnight stays. The court also made orders regarding changeovers, communication between the parties, physical chastisement, derogatory comments, and removal from Australia. The court restrained both parties from making derogatory comments about the other party and from allowing the child to hear such comments. The court also directed both parties to follow all recommendations of X’s treating doctors and allied health specialists and to engage with their mental health treaters. The court further ordered that the Australian Federal Police place X’s name on the Watch List and maintain it pending further order of the Court.
Orders
Orders of the court
SYC 1162 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ENRIGHT
Applicant
AND:
MS NORMANDS
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
3 SEPTEMBER 2021
THE COURT ORDERS THAT:
1. All previous parenting orders are discharged except for:
(a) Order 1 made on 9 May 2019;
(b) Order 3 of the orders made by consent on 20 September 2019; and
(c) Order 4 of the orders made by consent on 20 September 2019.
2. That the child live with her Mother.
3. That the child spend time with her Father:
(a) For four weeks from the date of orders, on Wednesdays from 9:00AM to 6:00PM and on Saturdays from 9:00AM to 6:00PM;
(b) Thereafter, for a period of six months, on Wednesdays from 9:00AM to 6:00PM, and from 9:00AM on Saturday until 12:00PM on Sunday;
(c) Thereafter, for a period of six months, on Wednesdays from 9:00AM to 6:00PM and from 9:00AM on Saturday to 5:00PM on Sunday;
(d) Thereafter, from 9:00AM on Wednesdays until 9:00AM on Thursdays and from 9:00AM on Saturday to 5:00PM on Sunday;
(e) On Father’s Day, from 9:00AM until 5:00PM; and
(f) On the Father’s birthday, from 9:00AM until 5:00PM.
4. That during the following times, the Father’s time with the child is suspended and the child shall spend time with the Mother:
(a) On Mother’s Day, from 9:00AM until 5:00PM;
(b) On the Mother’s birthday, from 9:00AM until 5:00PM
5. That the child shall spend time with her Father during the Christmas and New Year period as follows:
(a) From 9:00AM on 25 December until 9:00AM on 26 December; and
(b) From 12:00PM on 1 January until 12:00PM on 2 January.
6. That changeover shall occur as agreed between the parties in writing and failing agreement at the L corner of M Street and N Road.
7. That any and all communication except in the case of an emergency is to occur in writing between the parties.
8. Both parties are restrained from physically chastising the child including, but not limited to, smacking, hitting, pushing, or pulling the child, and from allowing or authorising any other person to do so.
9. Both parties are directed to follow all recommendations of the child’s treating doctors and allied health specialists.
10. Each of the parties is restrained from making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household, in the presence or within the hearing of the child.
11. Each of the parties is restrained from allowing the child to remain in the presence of or within the child’s hearing of any other person making comments derogatory of the other parent, any member of the other parent’s family, or any member of the other parent’s household.
12. Both parties are restrained from discussing these proceedings or the implementation of these orders in the presence of or within the hearing of the child.
13. Both parties are directed to engage with their mental health treaters and to follow all recommendations in relation to their mental health care.
14. Each of Mr Enright born in 1979 and Ms Normands born in 1983 and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child X, a female born in 2018 from the Commonwealth of Australia.
15. X, a female born in 2018 be and is hereby restrained from leaving the Commonwealth of Australia.
16. It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List pending further order of the Court.
17. Upon and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.
THE COURT NOTES THAT:
18. The Father may, at his liberty, obtain from the Independent Child’s Lawyer at any time a recommendation as to a course or courses to undertake in relation to men’s behavioural change.
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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