Morgan and Morgan

[2011] FamCA 957

FAMILY COURT OF AUSTRALIA

MORGAN & MORGAN [2011] FamCA 957

FAMILY LAW – CHILDREN - Child related proceedings

Family Law Act 1975 (Cth)

APPLICANT: Mr Morgan

RESPONDENT: Ms Morgan

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 1175 of 2010

DATE DELIVERED: 16 December 2011

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Fowler

HEARING DATE: 14 December 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Givney

SOLICITORS FOR THE APPLICANT: Shepherds, The Family Law Specialists

COUNSEL FOR THE RESPONDENT: Ms Hausman

SOLICITORS FOR THE RESPONDENT: Craddock Murray Neumann

INDEPENDENT CHILDREN’S LAWYER: Ms Weber

Orders

1. The application of the mother to change the child’s school will be adjourned to

   
   

   5 March 2012 and determined as part of the hearing.

2. Any further affidavits to be filed in support of or opposition of this application should be filed within 21 days of this date.

3. Order 2(a) of the Orders made by Judicial Registrar Johnston on 7 April 2010 is discharged.

4. Order 3 of the Orders made by Judicial Registrar Johnston on 7 April 2010 is discharged.

5. The child is to spend time with the father between the hours of 10.00 am and 6.00 pm each Sunday with the changeover on both collection and return to take place at the McDonalds Restaurant at Suburb AA.

IT IS NOTED that publication of this judgment under the pseudonym Morgan & Morgan is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1175  of 2010

Mr Morgan

Applicant

And

Ms Morgan

Respondent

And

Legal Aid NSW

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The principal proceedings between the parties are parenting proceedings in which each of the parties seeks to have the primary care of the child of their marriage, B born in 2002.

2. On 7 April 2010, Judicial Registrar Johnston as he then was made orders,

   
   

   inter alia, that the child spend time with the father each Thursday from after school to 6.30 pm, with the child to be collected from the school by the father and each Sunday from 9.30 am to 12 noon.

3. At the time those Orders were made and now the father was living in Suburb H.  The mother presently resides at Suburb W.

4. On 23 June 2010 the same Judicial Registrar confirmed the continuation of the orders he had previously made.

5. In these proceedings the father filed an Application in a Case on 2 June 2011 in which he sought orders, inter alia, that the child spend time with him from after school on Friday to 5.00 pm each Saturday (in lieu of each Sunday from

   
   

   9.00 am to 12 noon), (changed to Sunday for the purpose of the interim application), and during each school holiday period additional time.

6. The principal proceedings have been fixed for hearing on 5 March 2012.

7. The mother seeks orders at the present time that the child live with her (which reflects the current position) and that the child attend the AV Public School as from the commencement of the 2012 school year.

8. The mother, who had previously had significant concerns about the father, has indicated to the Court that she is prepared to accept the recommendations made by a Dr K who had provided the Court an independent expert report.

9. Such report recommends that the father for a period of approximately three months have contact one day per week, on the weekend.

10. The father proposes that the child spend time with him between the hours of 10.00 am and 6.00 pm each Sunday and that is consented to by the mother.

11. The father proposes however that the order previously made for Thursday night time continue.

12. Following the separation the mother has re-partnered and taken up residence at Suburb W.

13. The mother has applied for an order that the child’s school be changed from her present school at P Public School in the Suburb H area to the AV Public School school in the Suburb W area to commence in the first term of 2012.

14. The mother says that the school the child presently attends is approximately

    
    

    33 kilometres from her Suburb W home one way.  The drive she says can take between one to one-and-a-half hours each way.  The mother and her partner drive the child to school in the morning and drive then a further 10 kilometres to the city for work.

15. All in all the child currently travels it seems 66 kilometres to and from school.

16. The mother asserts that the lengthy travel is tiring for the child.

17. The child it seems also suffers from motion sickness and she advances a number of other reasons which suggest that the current arrangements are both impracticable and not in the child’s best interests.

18. The child, she says, in the event of a change of school, will be able to form friendships in the area in which she lives.

19. The mother sets out facilities available for the child at the AV school and the Court makes the observation that, on the information provided in the affidavit, there is nothing that can be said to the detriment of that school.

20. The mother also seeks orders in relation to the place of changeover of the child and says that a consideration of the geography means that the McDonalds Restaurant at Suburb H is approximately midway between the residences of the mother and the father.

21. Accordingly, there are basically three disputes to be determined.

22. Firstly, should the child at this stage change school.

23. The father opposes such an order being made.  He points out that if the order he seeks is made the school closest to the child will be the school she presently attends and it is to the detriment of the child that she move twice.

24. The father says that in keeping with the underlying philosophy of the Act he should continue to have his Thursday with the child which will be

    
    

    non-weekend time.

25. The Court has read the report of Dr K which was tendered into evidence.  The report is untested but there are clear indications that the child has expressed an acceptance of a transfer to AV school.

26. The basis upon which Dr K recommends the child’s contact arrangements is as set out in the report and whilst it is true that the report is as yet untested, it seems that there is a sound basis at least for abandoning the mid week arrangements.

27. These parties are in high conflict.  There has been a lack of cooperation between them.  There has been dispute between them which would have been obvious to the child.

28. Dr K clearly describes the mother as an anxious person.

29. Dr K describes the father as suffering a long-standing anxiety disorder fluctuating in intensity and which is an atypical form of social anxiety disorder.

30. It is the doctor’s express view that his anxiety is a significant contributor to the father’s controlling or violent outbursts and his insensitive outbursts.

31. The mother is also described as being anxious and the child is described as having an adjustment disorder with anxious mood.

32. Having regard to the recommendations and the evidence of Dr K it is not in the Court’s view in the interests of this child that she be subjected to possibly two moves of school and the Court proposes to adjourn the mother’s application for a change in schooling to the hearing in March when it will be determined as part of those proceedings.

33. In relation to the interim arrangements for the care of the child, having received the report of Dr K, the Court is of the view, particularly having regard to the level of hostility, that the child needs some respite and both for that reason, and because of the pressure put on her by travel and time away from her home, proposes that the order for mid week time with the father will be discharged at this time and the time spent at this stage will be limited to Sundays during the hours referred to above.

34. The father did not wish to be heard in opposition to the use of McDonalds Restaurant, Suburb AA as the place at which the child will be handed over for the purpose of the time to be spent with the father on Sunday.

35. Accordingly, the orders of the Court will be as set forth above.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler delivered on

16 December 2011.

Associate:

Date:  16 December 2011