FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Morton & Beatty [2022] FedCFamC2F 784
File number: SYC 4785 of 2020 Judgment of: JUDGE TURNBULL Date of judgment: 17 June 2022 Catchwords: FAMILY LAW – CHILDREN – parental responsibility – child to live with the mother in Tasmania – child to spend time with the father – where father lives in New South Wales – unilateral relocation – injunctions against both parents – video and telephone communication with child to be private – father to receive specialist therapy as condition of time with child – injunction against illicit drug use – ICL remains appointed for period of twelve months Legislation: Family Law Act 1975 (Cth) ss 4, 4AB, 60B(2), 60CA, 60CC(2), 60CC(3), 60CG, 60DA(2), 60DA(4), 61B, 61C, 64B(1), 64B(2), 65D(1), 65DAA, 65DAC, 65DAE(1), 68B(1), 68B(2) Cases cited: Attwood v Attwood [2022] FedCFamC1F 6
Bant v Clayton [2019] FamCAFC 198
Bennett v Bennett [2001] FamCA 462
Benson v Dury [2017] FamCA 578
Betros v Betros [2016] FamCA 225
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Boyce v Boyce [2015] FamCAFC 60
Briginshaw v Briginshaw (1938) 60 CLR 336
Carlson v Bowden [2008] FamCA 1064
Caulfield v Tennyson [2018] FamCA 770
CDJ v VAJ (No 1) (1998) 197 CLR 172
Duarte v Morse [2019] FamCAFC 93
Dundas v Blake [2013] FamCAFC 133
Flanagan v Handcock [2000] FamCA 150
Godfrey v Sanders [2007] FamCA 102
Goode v Goode [2006] FamCA 1346
Hedlund v Hedlund [2021] FedCFamC1A 84
Ibbott v Chaconas [2014] FamCA 73
Koyroyshs v Koyroyshs [2020] FamCA 626
M v M (1998) 166 CLR 69
Mazorski v Albright [2007] FamCA 520
McCall v Clark [2009] FamCAFC 92
MRR v GR (2010) 240 CLR 461
Murphy v Murphy [2007] FamCA 795
Robertson v Sento [2009] FamCAFC 49
U v U (2002) 211 CLR 238
Vallans v Vallans [2019] FamCAFC 260
Withers v Russell [2016] FamCA 793
Zanda v Zanda [2014] FamCAFC 173.Division: Division 2 Family Law Number of paragraphs: 446 Date of hearing: 26-28 October, 25-26 November, 29 November, 17 December 2021 Place: Heard in Launceston, City L, and Hobart, and delivered in Hobart Solicitor-Advocate for the Applicant: Mr Reeve Solicitor for the Applicant: Marsdens Law Group Counsel for the Respondent: Mr Briffa Solicitor for the Respondent: Legal Aid Commission of Tasmania Counsel for the Independent Children’s Lawyer Ms Higgins Independent Children’s Lawyer Bishops Barristers & Solicitors ORDERS
SYC 4785 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MORTON
Applicant
AND: MS BEATTY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
17 JUNE 2022
THE COURT ORDERS THAT:
1.All extant orders, save for:
(a)the order appointing the Independent Children’s Lawyer (‘ICL’), at order 10 of the orders of Judge Boyle dated 25 September 2020; and
(b)the injunctive order pursuant to s 68B of the Family Law Act 1975 (Cth), dated 17 December 2021, and as referred to in notation A below;
be discharged.
2.MR MORTON (‘the Father’) and MS BEATTY (‘the Mother’)…
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CaseChat Overview and Summary
Judge Turnbull determined that the parents should share equal parental responsibility for X, with the child residing primarily with the Mother in Tasmania. The visitation schedule for the Father was detailed, with specific times during the year allocated for X to spend time with him in both Tasmania and New South Wales. The court imposed stringent conditions on the Father’s visitation, including mandatory therapy, advance notice requirements for travel arrangements, and restrictions on illicit drug use. Furthermore, the court mandated private video communication between the child and the non-residential parent, with explicit instructions to ensure the privacy and confidentiality of these interactions. The court also stressed the importance of respectful communication between the parents, prohibiting them from using the child as a messenger or discussing the proceedings in the child's presence.
The court's final orders included the discharge of all previous orders except those related to the Independent Children’s Lawyer (ICL) and an existing injunction. The ICL's appointment was extended until July 1, 2023. The orders also included provisions for information sharing, changeover procedures, and the use of digital communication tools to facilitate co-parenting. The court’s decision aimed to balance the parents' rights and responsibilities with the paramount consideration of the child's best interests, ensuring a structured and supportive environment for X.
Orders
Orders of the court
SYC 4785 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MORTON
Applicant
AND:
MS BEATTY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
17 JUNE 2022
THE COURT ORDERS THAT:
1. All extant orders, save for:
(a) the order appointing the Independent Children’s Lawyer (‘ICL’), at order 10 of the orders of Judge Boyle dated 25 September 2020; and
(b) the injunctive order pursuant to s 68B of the Family Law Act 1975 (Cth), dated 17 December 2021, and as referred to in notation A below;
be discharged.
2. MR MORTON (‘the Father’) and MS BEATTY (‘the Mother’) (hereinafter referred to together as ‘the parents’) have equal shared parental responsibility for X born in 2016 (‘X’), and to this effect:
(a) within seven (7) days of the date of these orders the Mother shall do such acts and things to ensure X’s medical files notes the Father as a person to whom that entity or person can provide information regarding X’s health; and
(b) within seven (7) days of the date of these orders the Mother shall do such acts and things to ensure that any school X attends notes the Father as a person to whom that entity or person can provide information regarding X’s education.
X’s living arrangements
3. X shall live with the Mother.
X’s time with the Father
4. X shall spend time with the Father, noting the definition of each term holiday as given in notation B below:
In 2022
(a) on one occasion for each of the months of June and July in Tasmania from 10:00am Saturday until 4:00pm Sunday or such other time of the same duration as agreed by the parents in writing; and
(b) on one occasion for each of the months of August, September and October in Tasmania from 4:00pm Friday until 4:00pm Sunday or such other time of the same duration as agreed by the Mother and Father in writing; and
(c) on one occasion for each of the months of November and December in Tasmania from 4:00pm Friday until 4:00pm Monday or such other time of the same duration as agreed by the Mother and Father in writing with the December time not to occur over the weekend incorporating Christmas day 2022;
In 2023
(d) for a period of three (3) consecutive nights in New South Wales with the Father commencing at 10:00am 13 January 2023 and concluding at 4:00pm on the last day;
(e) during the term two Tasmanian public school holiday period for a period of four (4) consecutive nights in New South Wales commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day;
(f) during the term three Tasmanian public school holiday period for a period of five (5) consecutive nights in New South Wales commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day;
(g) during the term 4 Tasmanian public school holiday period (being the longer Christmas/summer school holiday period, coinciding with the end of the 2023 school year/summer 2024) for ten (10) consecutive nights in New South Wales to include Christmas Eve and Christmas Day with such period commencing at 10:00am on 23 December and concluding at 4:00pm on the last day;
In 2024
(h) during the term one and term three Tasmanian public school holiday periods in New South Wales for a period of seven (7) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day of such period;
(i) during the term two Tasmanian public school holiday period in New South Wales for a period of seven (7) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding either:
(i) at 4:00pm on the last day of such period, being the day after the seventh consecutive night; or
(ii) if the last day of such period pursuant to order 4(i) above falls on or before X’s birthday, at 4:00pm on the day following X’s birthday, with the intention that X should in those circumstances remain with the Father and not return to Tasmania unaccompanied, for the first time, on his eighth birthday; and
(j) during the term 4 Tasmanian public school holiday period (being the longer Christmas/summer school holiday period, coinciding with the end of the 2024 school year/summer 2025) for twelve (12) consecutive nights in New South Wales commencing at 10:00am 3 January 2025 and concluding at 4:00pm on the last day;
From 2025 onwards:
(k) during the term one of the Tasmanian public school holiday periods in New South Wales, and each year thereafter, for a period of eight (8) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day;
(l) during the term two Tasmanian public school holiday periods in New South Wales:
(i) in 2025, and each alternate year thereafter, for a period of seven (7) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding either:
A. at 4:00pm on the last day of such period, being the day after the seventh consecutive night; or
B. if X’s birthday falls within, or on the last day of, the period ordered at 4(l)(i)(A) above, at 4:00pm on the day before X’s birthday, with the intention that X will spend this birthday with the Mother in alternate years commencing in 2025;
(ii) in 2026, and each alternate year thereafter, for a period of seven (7) consecutive nights commencing at 10:00am on the Friday at the end of the first week following the conclusion of the school term and concluding at 4:00pm on the last day, being the day after the seventh consecutive night, with the intention that X will spend his birthday with the Father in alternate years commencing in 2026;
(m) during the term three Tasmanian public school holiday periods in New South Wales, and each year thereafter, for a period of eight (8) consecutive nights commencing at 10:00am on the first Saturday following the conclusion of the school term and concluding at 4:00pm on the last day;
(n) during the term 4 Tasmanian public school holiday period (being the longer Christmas/summer school holiday period, coinciding with the end of the 2025 school year/summer 2026) as follows:
(i) for a period of fourteen (14) consecutive nights commencing 23 December 2025;
(ii) for a period of fourteen (14) consecutive nights commencing 3 January 2027;
(iii) for a period of twenty one (21) consecutive nights commencing 23 December 2027, and continuing each alternate year thereafter; and
(iv) for a period of twenty one (21) consecutive nights commencing 3 January 2029, and continuing each alternate thereafter;
School terms
(o) on one weekend during each Tasmanian school term, from 10:00am Friday until 4:00pm Sunday, with such weekend time to be available from the commencement of the school year in 2023, which may from that time take place in either New South Wales or Tasmania, noting that the Father’s weekend time in term 3 of each year may occur over the Father’s Day weekend as arranged in accordance with 4(q);
Mother’s Day and Father’s Day
(p) X shall be in the care of the Mother on the weekend of Mother’s Day and the Father is not to present a proposal to the Mother to spend time with X on such weekend; and
(q) X shall be in the care of the Father on the weekend of Father’s Day provided Father’s Day coincides with time he will spend with X pursuant to order 4(o) above, and the Mother should not oppose such proposal whenever presented.
Conditions and notice with respect to X’s time with the Father in Tasmania
5. For the purposes of the Father’s time pursuant to orders 4(a)-(c), 4(o), and 4(q):
(a) the Father is to give no less than twenty-eight (28) days’ written notice to the Mother of his proposal to travel to Tasmania and the exact time and dates he intends to spend time with X;
(b) the Mother shall respond to the proposal within seven (7) days of receipt of such written notice to confirm that time will occur as sought, or an alternative time if there is a reasonable excuse (which must be detailed) as to why the sought time cannot occur when proposed by the Father; and
(c) the Father will ensure that X will attend school, scheduled school-related activities and agreed extra-curricular activities during any period that he spends time with X in Tasmania.
Conditions and notice with respect to X’s time with the Father in New South Wales
6. For the purposes of the Father’s time pursuant to orders 4(d)-(o) and 4(q):
(a) the Father is to give no less than twenty-eight (28) days’ written notice to the Mother confirming that he will exercise time pursuant to the terms of the relevant order; and
(b) the Mother shall respond to the proposal within seven (7) days of receipt of such written notice and to acknowledge the same;
X’s travel between Tasmania and New South Wales
7. Upon X attaining eight (8) years of age, X be permitted to travel as an unaccompanied minor between Tasmania and New South Wales.
8. Commencing in 2023, the Mother is to book and fund the cost for X to travel between Tasmania and New South Wales, including the cost of any adult accompanying X, for the term two holiday period X will spend with the Father in New South Wales in each calendar year (pursuant to orders 4(e), 4(i), and 4(l) above) and will provide to the Father a copy of X’s travel itinerary at least forty-eight (48) hours prior to X leaving Tasmania.
9. The Father shall book and pay for the balance of the costs of X’s travel between Tasmania and New South Wales to spend time with him pursuant to order 4, including the cost of any adult accompanying X, and is to provide to the Mother a copy of X’s travel itinerary at least forty-eight (48) hours prior to X departing Tasmania.
Conditions of X’s time with the Father
10. It is a condition of the Father spending time with X pursuant to these orders that:
(a) within fourteen (14) days of the date of this order or, if within fourteen days is not possible, as soon as an appointment can be arranged, the Father shall consult with Ms C (‘Ms C’) as to who is an appropriate therapist (‘the appropriate therapist’) to provide him with therapy/counselling in relation to matters requiring therapy as referred to in the Reasons accompanying these orders, at paragraph 299, as the ‘matters requiring therapy’;
(b) within seven (7) days of the of the Father being advised of the name of the appropriate therapist the Father will do all things, take all actions, and sign all documents so as to engage with the appropriate therapist;
(c) within seven (7) days of the Father organising an appointment with the appropriate therapist, the Father shall advise the ICL and the Mother of the appropriate therapist’s details, including their full name, practice address, telephone and email address;
(d) the appropriate therapist is to engage with the Father in accordance with the issues described at paragraph 299 of the Reasons which accompany these orders;
(e) the Father shall, at his own cost, continue to engage with the appropriate therapist and follow the appropriate therapist’s advice and recommendations for such time as deemed necessary by the appropriate therapist; and
(f) the Father will, within seven (7) days of receiving a referral to the appropriate therapist, provide the ICL with full written authority to obtain all and any information from Ms C and/or the appropriate therapist about the Father’s therapy/counselling as the ICL deems fit.
Video calls
11. Noting the definition set out at notation C, X shall communicate with parent B via video call:
(a) on two (2) occasions each week, being a Sunday and Wednesday, at 5:00pm, for no more than 20 minutes each time;
(b) on Christmas Day at 10:00am for no more than 20 minutes noting that, if Christmas Day falls on a Sunday or a Wednesday, the terms of 11(b) shall replace the time ordered for that day by virtue of 11(a); and
(c) on his birthday each year at 5:00pm for no more than 20 minutes.
12. To effect the communication at order 11 above, and noting the definition at notation C, parent A:
(a) is hereby restrained from recording video calls between X and parent B; and
(b) is to provide parent B and X privacy while the video call takes place.
Information sharing
13. Each party, including the ICL for the duration of their appointment, shall keep all other parties to these proceedings advised at all times of the following information:
(a) their residential addresses or, in the ICL’s case, the address of the ICL’s office;
(b) their email addresses; and
(c) their telephone contact numbers.
14. Further to order 13(c) above, and to effect order 23 below, each parent shall also inform the other of their emergency contact telephone number in the event that their emergency telephone contact number differs from their usual telephone contact number.
15. Both parents will be entitled to attend all events involving X including but not limited to:
(a) school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports day, parent/teacher interviews (on the basis the parents do not need to attend together) and other social functions and the parent who has X in their care on the day of such an activity, will be responsible for their day to day care at such event and X’s transportation to and from that event unless otherwise agreed to between the parents;
(b) extracurricular activities that allow for parental attendance; and
(c) sporting fixtures.
16. Both parents must keep each other informed of:
(a) any significant medical problems or illness suffered by X while they are in their respective care including visits to hospitals or specialist doctors; and
(b) any medication that has been prescribed for X.
17. The parents are to do all acts and things necessary and give all irrevocable authorities to ensure that both parents’ details are provided to any school X may attend from time to time and, further in this regard, to ensure that copies of all reports, merit cards, school photograph order forms, written material or newsletters and any other documentation are sent to both parents.
Non denigration, restraint against discussing litigation, and restraint against using X as a messenger
18. The parents be restrained by injunction from denigrating the other parent or members of the other parent’s family to X or in the presence of X or at all.
19. The parents be restrained by injunction from discussing these proceedings with or in the presence of X or showing X any document connected with these proceedings.
20. The parents be restrained by injunction from using X as a messenger between themselves in any way whatsoever.
Changeover
21. For the purpose of changeover the following shall apply:
(a) if the Father’s time is to occur in Tasmania, handovers shall take place at the City D Children’s Contact Centre (‘City D Children’s Contact Centre’), but if this service is not available, such changeover shall occur at the McDonald’s Restaurant in Suburb E;
(b) until X attains the age of eight (8) years, and if X is travelling to New South Wales, changeovers shall take place at the City D Airport save and except if the Mother is accompanying X to New South Wales, in which case changeover will take place at the McDonald’s Restaurant closest to the residence of the Father; and
(c) further to order 21(b) above, if X is travelling as an unaccompanied minor, the parents shall comply with the conditions of X’s ticket and deliver X to the airport according to those conditions.
Drug use
22. Each parent is restrained by injunction from using any illicit drug at least forty-eight (48) hours prior to and while X is in their care.
Communication between the parents
23. The parents shall communicate with each other via the ‘TalkingParents’ app, or another digital product intended for co-parenting purposes as may later be agreed between the parents, save and except for cases or circumstances of emergency, in which the parents shall contact one another by telephone.
24. The parents shall, at all times, communicate respectfully.
25. The parents shall not discuss between themselves, or mention to X, any matters in relation to parenting or which are otherwise inappropriate for X to observe or hear, either at the point of changeover or at any other time at which they are in the presence or hearing of X.
Release of information
26. The parents and the ICL have leave to release to Ms C, the Father’s appropriate therapist, Ms F, and any other counsellor, psychologist, or therapist which may treat the Father or the Mother from time to time:
(a) a copy of these orders, dated 17 June 2022;
(b) a copy of the injunction dated 17 December 2021 which, as noted at A below, remains in force and effect as a final order;
(c) a copy of the Reasons for decision, delivered on 17 June 2022, accompanying these orders; and
(d) a copy of the family report dated 28 May 2021.
Appointment of the Independent Children’s Lawyer
27. The appointment of the ICL be extended until 5:00pm on 1 July 2023.
THE COURT NOTES THAT:
A. The injunction pursuant to s 68B of the Family Law Act 1975, dated 17 December 2021, was proposed and finalised by consent of all parties as a final order in these proceedings. The parties agree that this injunction forms part of the final orders but, due to its sensitive nature, the injunction will remain contained within a separate document.
B. Wherever these orders refer to X’s school holidays, the following definitions apply: ‘term 1 holidays’ refers to the holidays between the conclusion of term 1 and the commencement of term 2; ‘term 2 holidays’ refers to the holidays between the conclusion of term 2 and the commencement of term 3; ‘term 3 holidays’ refers to the holidays between the conclusion of term 3 and the commencement of term 4; and ‘term 4 holidays’ refer to the holidays between the conclusion of term 4 and the commencement of term 1 in the following calendar year.
C. For the purposes of orders 11 and 12 above, ‘parent A’ refers to the parent who has X in their care at the relevant time, and ‘parent B’ refers to the parent who does not have X in their care at the relevant time.
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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