MORREN & EASTWELL

[2019] FamCA 1049

FAMILY COURT OF AUSTRALIA

MORREN & EASTWELL [2019] FamCA 1049

FAMILY LAW – CHILDREN – Procedural – Where proceedings commenced in the Federal Circuit Court of Australia – Where final orders were made in 2016 – Where unsubstantiated allegations of family violence perpetrated by the father’s partner resulted in the cessation of time between the father and child – Where the 2016 final orders were reinstated in 2017 – Where the father brought an application for variation of final orders for the child to live with him – Where the mother opposes the application – Where proceedings were transferred to this Court – Where the father withdrew his application recognising no value for the child in ongoing conflict – Where the matter proceeded undefended.

FAMILY LAW – CHILDREN – Undefended hearing – Best interests – Parental Responsibility – With whom the child shall live and spend time with – Where the child lives with the mother and has not spent time with the father for almost two years – Where the child has suffered psychologically as a result of exposure to prolonged and intense parental conflict – Ordered the child live with the mother and the mother have sole parental responsibility – Ordered the child to spend time with the father as agreed between the parties – Ordered the father’s partner not be present or in the vicinity of any such occasion of time.

Family Law Act 1975 (Cth) ss 60CC, 61DA
APPLICANT:	Mr Morren

RESPONDENT: Ms Eastwell

FILE NUMBER: NCC 2997 of 2015

DATE DELIVERED: 20 November 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 19 – 20 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not applicable

SOLICITOR FOR THE APPLICANT: Not applicable

COUNSEL FOR THE RESPONDENT: Not applicable

SOLICITOR FOR THE RESPONDENT: Attwaters

Orders

1. That all prior parenting orders made in this Court and in the Federal Circuit Court relating to X born … 2010 (“the child”) are discharged.

2. The child shall live with the mother.

3. The mother shall have sole parental responsibility for the child.

4. The mother is to keep the father informed in a timely manner of the child’s educational, social and extra-curricular progress including but not limited to informing the father in advance of any change of school and of the child’s commencement of any organised extra-curricular activity.

5. That the child spend time with the father as may be agreed between the parties.

6. Changeovers shall occur outside McDonalds at Suburb F as between the father alone, or if he is unavailable the paternal grandparents or either of them, and the mother alone, or if she is unavailable then one or other of Mr B or Mr C.

7. Ms D must not be present or in the vicinity of any occasion of time.

8. The mother is at liberty to remove the child from Australia for the purposes of holidays generally during school vacations and for that purpose she is at liberty to apply for a new passport for the child when his current passport expires in 2020 provided that she gives the father 42 days notice of intention to travel and details of countries to be visited.

9. The mother must use her best endeavours to ensure that the child continues to have communication with and spend time with his paternal grandparents.

10. All communication as between the parties in order to give effect to the parenting arrangements created by these orders is to take place, unless otherwise agreed, between the parties by email.

11. Each party is to keep the other informed of their residential address and contact details, including telephone number and email address and notify the other of any change in those details within 24 hours of such change.

12. This order shall operate as sufficient authority to the principal and other officers of any school that the child attends to enable each party to receive reports, school photograph order forms, letters and any other notices in relation to the child and to permit both parties to speak with the child’s teachers concerning his education and school performance and, to attend events at school to which parents are invited.

13. The mother must notify the father as soon as practicable upon the child contracting any illness or suffering any injury which reasonably requires treatment by a medical professional.

14. Whenever he requests it, the child is to be provided with the means of telephoning the other parent and the paternal grandparents and the child is to be afforded privacy during such communications.

15. Each of the parties may provide a copy of these orders to any school which the child attends.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morren & Eastwell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2997 of 2015

Mr Morren

Applicant

And

Ms Eastwell

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Introduction

1. This is an application by Ms Eastwell, the mother, for parenting orders in respect of one subject child X (“the child”), now aged nine.

2. The child lives with the mother.

3. The father of the child, Mr Morren, was the applicant in the proceedings, which he initiated in March 2018. The father had been seeking a change of residence for the child to him since May 2018. In September 2019, the father made the decision to discontinue his application[1] and he withdrew from participation in these proceedings.

   [1] Notice of Discontinuance dated 6/09/2019

4. Accordingly, the application for orders sought by the mother, in her Further Amended Response, is now before the court. 

5. The documents relied on by the mother are as follows:

   a)Further Amended Response filed 20/09/2019;

   b)Affidavit of the mother filed 20/09/2019;

   c)Family Report dated 12/04/2019;

   d)Child Inclusive Conference Report dated 28/06/2018;

   e)Tender bundle of correspondence between 7/03/2017 and 26/04/2019.[2]

   [2] Exhibit 2

6. I am satisfied that the father has been served with the documents relied on by the mother.[3]

   [3] Exhibit 1

7. I am also satisfied that the father has read the Child Inclusive Conference Report and the report of the family consultant.

History

1. The child is the only child of the relatively brief relationship between the parties in 2008/2009 for one or two years.

2. The father has two young adult children from a prior relationship. He also has two preschool aged children from his current relationship with his partner, Ms D. Ms D has a son aged 11 who is a member of the father’s household.

3. The mother has four children from a prior marriage, three of whom are young adults. The younger two live with the mother and her current partner, Mr C. Mr C also has two children aged 19 and 16 from a prior marriage. They are visitors but not full time members of the household.

Short History

1. Post-separation, the child built a relationship with the father with the support and encouragement of the mother.

2. In 2013, the father began a relationship with Ms D and, in 2014, they began living together.

3. In November 2015, the father filed an application in the Federal Circuit Court which led to final orders made by consent on 5 February 2016 (“the 2016 orders”). Those orders were for the parties to share parental responsibility equally, for the child to live with the mother and to spend time with the father on alternate weekends, holidays and other special times.

4. By the end of that same month, the child had ceased spending time with the father due to allegations raised on his behalf by the mother that Ms D was physically abusive towards the child.

5. On 14 March 2017, the mother filed an initiating application in the Federal Circuit Court seeking restraints on the father, which illuminate the issues which are still very much current. The restraints[4] sought were that the father was not to cause or permit the child to be left in the sole adult company of Ms D and, further, that in the event of any argument or disputation between the father and Ms D, which upset the child, the father was to return the child to the home of the paternal grandparents.

   [4] Initiating Application of the mother filed 14/03/2017, orders 1.1 and 1.2 of final orders sought

6. On 8 May 2017, that application gave rise to consent orders pending further order with notations in accordance with the orders referred to above.

7. On 15 September 2017, orders were made in the Federal Circuit Court which dismissed the May 2017 interim orders and the mother’s application of March 2017. The 2016 orders were to continue, which represented a return, at least in theory, to the position of substantial and significant time unrestricted between the child and the father.

8. On 2 December 2017, there was an incident at the home of the maternal grandparents, which the child witnessed. There was a confrontation between Ms D and the maternal grandmother.

9. On 12 March 2018, the father filed the initiating application which gave rise to this round of proceedings. The father filed a Notice of Risk highlighting the level of conflict between the parties.

10. On 4 May 2018, the mother, again, sought orders restraining the father from allowing the child to come into contact with Ms D. The mother filed a Notice of Risk, setting out the physical and verbal abuse which she alleged the child had told her about involving him and Ms D, also exposure of the child to family violence in the father’s home.

11. In the Federal Circuit Court, changeover arrangements were varied.

12. In May 2018, the father amended his application to apply for a change of residence for the child to him.

13. In August 2018, the proceedings were transferred to this Court. 

14. A Family Report was ordered and in April 2019 it was released. The report did not recommend a change of residence as sought by the father nor a referral to therapy for the father and child as sought by the mother. The report identified difficulties for the child in both households due to a lack of child focus, in the opinion of the family consultant, by each parent[5] as follows:

    X is the eight year old subject child who has been the subject of litigation for half his life. He has been exposed to parental conflict and acrimony to such a prolonged and intense degree that his psychological wellbeing and development has suffered. X has experienced a decline in his sense of wellbeing and self-worth. He has been deprived of the opportunity to enjoy his relationships with both of his parents despite his clear desire to do so.[6]

    [5] Family Report dated 12/04/2019 pars 183-194

    [6] Family Report dated 12/04/2019 par 183

The Law

1. A court must be satisfied that parenting orders are in the best interests of children (s 60CC of the Family Law Act 1975 (Cth) (“the Act”)).

2. There is no challenge to the evidence of the mother in this matter. 

3. Nevertheless, the court must be satisfied about the arrangements to meet the requirements of the legislation. Relevant factors in this matter are, first of all:

Views

1. The family report reviewed a pitiful level of distress in the child, including crying and resisting, at changeovers and in anticipation of changeovers, yet he wanted to spend time with his father.

2. Despite the child exhibiting what the family consultant revealed as “high levels of anxiety and distress” when considering actually spending time with the father for observation[7], and observation was carefully undertaken, the observation revealed a happy, lively relationship between the child and his father with mutual affection expressed between the two both verbally and physically. The child reported to the family consultant that he “felt very good after seeing his father”.[8]

   [7] Family Report dated 12/04/2019 par 165

   [8] Family Report dated 12/04/2019 par 179

Family Violence

1. There have been angry exchanges in person, by text, by email and by phone between the parties.

2. The mother has been angry with the father and defensive of the child.

3. The father has been angry with the mother, defensive of himself and his partner, Ms D.

4. A loyalty conflict appears to exist for the father created by love for his son, the subject child, and respect for his partner, the mother of his two youngest children.

Impact of Change

1. There has already been no time for almost two years, other than for the observation period in April 2019 between the child and the father.

2. The main change of the orders proposed, and to be made, is that there be less pressure on the child about how he could spend time or whether or not he should.

3. The child is likely to feel sad, possibly guilty, for raising issues about his father’s household which concerned him.

Other Relationships

1. The child has particularly strong relationships with the maternal grandparents, particularly the maternal grandmother.

2. He also has strong relationships with the paternal grandparents and enjoys playing cricket with the paternal grandfather.

3. These relationships will be important for him to maintain, with the loss of regular time with his father. 

Conclusion

1. These orders in the circumstances proposed by the mother are in the best interests of the child. 

2. They discharge orders for defined time for the child with the father. That is a loss for the child and probably until he is 18.

3. The orders provide relief from the bitter conflict between the parties and between the mother and the father’s partners, if the orders provide for time to occur only by agreement between the parties.

4. There may be time and communication by arrangement between the parties but on the current evidence it seems unlikely. 

5. The mother will not countenance the child being brought in contact with the father’s partner and there is an order to that effect. 

6. The father will not exclude his partner and young children from the experience of time between the child and himself. It is an emotional stalemate. By his remarks on the last court event on 29 August 2019 the father recognised that fact. He could not see any value for the child in ongoing conflict.

7. The mother holds the father responsible for failing to give priority to the child.

8. It may be that it will be only after the child turns 18 in 2028 when he makes his own decisions about whether the relationship between himself and his father is fully restored or not. That will be his choice.

9. The orders are made largely as sought with some variations raised with counsel for the mother in submissions, in relation to inclusion of the paternal grandparents, at least, in some minor ways; notice to be given for overseas holidays taken by the mother with their child, provision for the father to attend school events to which parents are invited and the ability of the parents to provide the orders to the principal of any school which the child attends. 

10. Orders are made accordingly.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 20 November 2019.

Associate: 

Date:  20 November 2019