Norton & Norton
[2024] FedCFamC1F 100
•23 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Norton & Norton [2024] FedCFamC1F 100
File number: SYC 178 of 2024 Judgment of: ALDRIDGE J Date of judgment: 23 February 2024 Catchwords: FAMILY LAW – PARENTING – Where the father has retained one of the two children since December 2023 – Both parties seek interim orders for sole parental responsibility and that the children live with them and spend time with the other parent – Consideration of the best interests of the children – All proposals recognise the children would benefit from being reunited and having a meaningful relationship with each parent – No interim finding of a risk of harm – Concerns about father’s parenting capacity – Children to live with the mother and spend time with the father – No order for parental responsibility justified. Legislation: Family Law Act 1975 (Cth) s 60CC Division: Division 1 First Instance Number of paragraphs: 30 Date of hearing: 23 February 2024 Place: Sydney Counsel for the Applicant: Mr Brickwood Solicitor for the Applicant: Lagom Family Law Counsel for the Respondent: Mr Kenny Solicitor for the Respondent: Hills Family Law Centre ORDERS
SYC 178 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NORTON
Applicant
AND: MR NORTON
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
23 FEBRUARY 2024
PENDING FURTHER ORDER, THE COURT ORDERS THAT:
1.The children Y born 2017 and X born 2015 will live with the mother.
2.The children will spend time with the father each alternate weekend from the conclusion of school on Friday, or if the children are not at school then from 3.00 pm, until the commencement of school on Monday, or if the children are not at school then to 9.00 am with that time to commence on 15 March 2024.
3.The children will spend time with the father as follows:
(a)on Y’s birthday in 2024 if the children are not otherwise with the father from after school, or if the children are not at school then from 3.00 pm, until 6.00 pm;
(b)on the day of Eid each year from the conclusion of school, or if the children are not at school then from 3.00 pm, until 7.00 pm or if the day of Eid falls on a weekend or during a school holiday period where the children are not otherwise with the father then from 9.00 am to 5.00 pm;
(c)on the father’s birthday in 2024 if the children are not otherwise with the father from the conclusion of school, or if the children are not at school then from 3.00 pm, until 7.00 pm;
(d)on Father’s Day in 2024 if the children are not already with the father from 9.00 am to 5.00 pm;
(e)on X’s birthday in 2024 if the children are not otherwise with the father from after school, or if the children are not at school then from 3.00 pm, until 6.00 pm; and
(f)at any other times agreed between the parties in writing.
4.Notwithstanding Orders 1, 2 and 3 above, the children shall spend the following special occasions with the mother and the father’s time pursuant to Order 2 shall be suspended to allow this time to occur:
(a)on the mother’s birthday in 2024 if the children are not otherwise with the mother from after school, or if the children are not at school then from 3.00 pm, until 7.00 pm;
(b)at Easter in 2024 from 9.00 am Good Friday until 5.00 pm Easter Monday;
(c)on Mother’s Day in 2024 from 5.00 pm on the Saturday immediately prior to Mother’s Day to 5.00 pm on Mother’s Day;
(d)at Christmas in 2024 from 9.00 am on Christmas Eve until 5.00 pm on Boxing Day; and
(e)at any other times as agreed between the parties in writing.
5.By no later than 7.00 pm on 23 February 2024, the father shall do all acts and things to return the child, Y to the care of the mother by delivering the child to the mother’s residence at B Street, Suburb C NSW.
6.If the child, Y, is not returned in accordance with Order 5 above, the mother has liberty to apply before this Court on Monday morning 26 February 2024 for a recovery order.
7.The children spend time with the father during the short gazetted New South Wales school holiday periods as follows:
(a)for the first half of each short school holiday period at the conclusion of terms 1, 2 and 3, in even numbered years, and such time shall commence at 3.00 pm on the last day of school for that term and conclude at 4.00 pm on the middle Saturday of that school holiday period; and
(b)for the second half of each short school holiday period at the conclusion of terms 1, 2 and 3, in all odd numbered years, and such time shall commence at 4.00 pm on the middle Saturday of that school holiday period and conclude at 4.00 pm on the Saturday immediately before the commencement of the next school term.
8.The mother be at liberty to communicate with the children on the Saturday that the children are in the father’s care between 5.00 pm and 5.30 pm and the father be at liberty to communicate with the children each Wednesday that the children are in the mother’s care between 5.00 pm and 5.30 pm.
9.For the purposes of Order 8 above, the party with whom the children are not spending time with will contact the children on the children’s iPad and in the event the children miss that call, the party with whom the children are spending time with will do all acts and things necessary to ensure the children return the call that same day.
10.For the purposes of changeover, the following shall occur:
(a)if it is a school day at the commencement and/or conclusion of time, then the father shall collect the children from and/or deliver the children to school at the commencement and/or conclusion of the father’s time; and
(b)if it is a non-school day then the father shall collect the children from the mother’s residence at the commencement of time and deliver the children to the mother’s residence at the conclusion of time.
11.The parties shall do all acts and things necessary to provide written notice to the other party of any changes in their residential address or telephone numbers within 48 hours of the change occurring.
12.Each parent will ensure that the other parent is notified forthwith of the following things in writing (via text message):
(a)any serious medical problem or illness suffered by the children or either of them;
(b)any medical emergency;
(c)any occasion that the children or either of them are hospitalised; and
(d)any medication that has been prescribed for the children or either of them including any treatment regime where such treatment will need to be administered by the other parent during their time with the children.
13.If either parent has provided notice to the other parent in accordance with Order 12 above, each parent is to provide the following details where applicable:
(a)the nature of any serious medical problems, illness or medical emergency;
(b)the name of any hospital the children or either of them are due to attend or has attended and, where known, the name of any doctor or specialist who has provided treatment to the children or either of them in hospital;
(c)the name, telephone number and address of any medical practitioner, specialist or other health professional who has provided treatment to the children or either of them outside of hospital; and
(d)any diagnosis or prognosis received in relation to the children or either of them or any treatment provided.
14.If the children are in the father’s care at any time the children have a medical, counselling, allied health or other appointment booked, the father will ensure the children attend that appointment at the required time and the mother shall be at liberty to attend the appointment (with a support person) with the children and for the purposes of this order:
(a)the mother will ensure that she notifies the father, in writing, of any appointment booked for the children during the father’s time including but not limited to confirming the name and address of the appointment and the time the children are required to attend as soon as possible following the making of the appointment; and
(b)the mother will use her best endeavour not to book appointments for the children when the children are in the father’s care but it is noted that if the only available suitable appointments are during this time, the children’s need to attend the appointment will take precedence.
15.Each of the parents be restrained from:
(a)physically disciplining the children or either of them;
(b)making any disparaging or negative remarks or comments about the other parent or their extended family, either to the children or either of them, in their presence or within their hearing, and shall remove the children from the presence of any third party that makes any disparaging or negative remarks or comments about the other parent;
(c)discussing the proceedings or any allegations raised in the proceedings with the children or either of them, in their presence or within their hearing, or permitting any other person to do so within their knowledge or in their presence;
(d)permitting the children to have access to any of the documents filed in these proceedings;
(e)communicating any information intended for the other parent through the children; and
(f)causing the children to be a medium in any way between the parties or between the parties and any other person.
16.Mr Norton born 1988 and Ms Norton born 1989, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children, Y born 2017 and X born 2015, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Family Law Watchlist until the Court orders its removal.
17.The balance of the Application in a Proceeding filed 12 January 2024 is stood over for directions at 10.00 am on 6 August 2024.
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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Norton & Norton has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTALDRIDGE J:
This is the hearing of an interim parenting application involving the parties’ two boys, X, aged eight, and Y, who is nearly seven years old. The mother’s proposed orders are that she have sole parental responsibility for the boys’ health and that the boys live with her. She proposes that they spend Friday and Saturday with the father once every fortnight. On the other hand, the father seeks sole parental responsibility for the children and that they live with him and spend Friday and Saturday night with the mother each fortnight together with half of the school holidays.
In the course of addresses, counsel for the father made a secondary proposal on the basis that if the primary proposal was not accepted then the appropriate arrangement for the children was that they live with the mother and spend five nights per fortnight with him, being three nights every alternate weekend from Friday afternoon to Monday morning and Wednesday and Thursday night in the alternate week.
Although the parties have reached an intractable position as to the parenting arrangements for their children, they did not in fact raise many issues of significance for determination.
The parties separated on 7 February 2023. From March to November 2023, the children lived primarily with the mother, spending generally about six nights per fortnight with the father. It was not an issue between the parties that the boys have difficulties, both at home and at school, controlling themselves and tend to fight with each other and with children at school rather than resolve matters in a less violent way.
According to the mother’s evidence, in late 2023, she became increasingly concerned about the children’s behaviour becoming worse. She proposed to the father that the children receive counselling for the difficulties. Again, according to her, this became the subject of an argument between them but ultimately it was resolved and each of the boys is seeing a psychologist with the concurrence of both parties. Nonetheless, the mother’s perception of the children’s difficulties continued so that she decided it was in the best interests of the children that she withhold them from the father. Her reasons for doing so are set out in the following paragraphs of her affidavit filed 12 January 2024:
35.In or about November 2023 I noticed that [X’s] behaviour, in particular, was escalating. [Y] was also becoming incredibly emotional and on 18 November 2023 started to cry and say to me words to the effect of “Please mum I don’t want to go to dad’s tomorrow. Can I stay one more day. Please, ask dad. What if he says no”. [Y] was very upset and cried for 20 minutes hysterically, finally falling asleep exhausted. I decided that I could not persevere with the care arrangements anymore and that I needed to do something to ensure the Children’s emotional wellbeing and safety.
Suspension of time and [the father] unilaterally retaining [Y]
36.On or about 24 November 2023 I suspended [the father’s] time with the Children and asked him to complete a hair follicle test, provide his medicinal marijuana prescription and provide a signed undertaking confirming he would not physically discipline the Children.
The affidavit does not go on to say why a hair follicle test was required or what concerns flowed from the father’s use of marijuana which as it turns out appears to have been prescribed for him. No particular threat was identified that put the children at risk. Therefore, withholding the children was, in all of the circumstances, a rather severe step for the mother to take.
The hair follicle test proved negative and on 11 December 2023, the father informed the mother that he would collect the children from school and that he would retain them until 20 December 2023 for makeup time. That was not a step he had previously proposed.
The mother agreed on the basis that the children would return to her care on 12 December 2023, which they did. Nonetheless, the father continued to press what he said he was entitled to have as makeup time. The parties were unable to agree on any appropriate arrangements for the children and a mediation was arranged for 18 December 2023.
On the morning of 15 December 2023, the father attended the boys’ school and withdrew Y. X was home sick that day. As there was no genuine reason for the father attending the school and removing Y, other than self-help to get his so-called makeup time, it is an easy inference to draw that he would have withdrawn X from school as well had he been there. Counsel for the father properly conceded that this act could be described as a tit-for-tat step.
The mediation was unsuccessful. Had the father retained Y for the purpose of makeup time until 20 December 2023, he would have returned Y to the mother at that time. He did not. On 22 December 2023, the mother sent the following text to the father:
Hi, I would like to propose that you can spend time with both [X] and [Y] from now until 12pm Mon 25 Dec and then you allow me to spend from 12pm Monday 25 Dec Christmas day to 12pm 27 December, then you can have both boys 12pm 27 Dec to 12pm 28 Dec, then it can temporarily resume to the prior care arrangements for the remainder of the school holidays.
12pm Wed – 12pm Sun (me)
12pm Sun - 12pm Wed (you)
Let me know your if you agree to this proposal so we can both spend time with the children over the holidays. If so, you can have [X] tonight after [sport].
(Annexure “B” to the mother’s affidavit filed 12 January 2024, p.38)
In all the circumstances, that seemed to have been a reasonable process to get things back on track. It would have seen the boys reunited and enabled them to spend time with the mother on Christmas Day. The mother then proposed that there be resumption of the earlier arrangement. Unfortunately, the father did not see it that way and the text exchange continued:
Father:How do I know you won’t just keep both my kids the moment you have them?
You need to convince me
Mother:I also dont know if you will do the same and not return them to me on Christmas day, you are just going to have to trust me. You have retained [Y] for the past week splitting him up with his brother in an attempt to coerce me into signing orders I don’t agree with, I’m only looking at the best interest of the boys over the holiday period as it would be a shame for them not to spend Christmas together.
Father:If I recall. You started all of this. The way I see it, I was making my make up time but you took [X] from me.
I’m not coercing you into anything. I’m simply looking at the best interest of my boys but ensuring that they will have [a] healthy and meaningful relationship with BOTH their mother and father. You are taking them away from their father.
Father:I know you have gone down this path and you have to stick to the same narrative. Give me a call for a quick chat so you can hear me out off the book. whats the harm in that?
Father: fyi, we’re going to […] tomorrow. so there’s not much time left
Mother:I just want the boys to be together for Christmas and the only reason they won’t be is because of you
Father: No. You are the reason they won’t be together
You accused me with lies
Then when I’ve absolved my name from the risks, you still want to take my kids from me
You did this
I am protecting my children from your actions
Father:Everything that you have done thus far, everyone can see that you have acted against the best interest of the children and The Family Law Act 1975. You have acted on your own personal interests. Not the children. Please stop saying you are thinking of the boys.
(Annexure “B” to the mother’s affidavit filed 12 January 2024, p.39–41)
Such an attitude on the part of the father hardly seems to have been focused on what was good for the boys as opposed to what he saw as his entitlement. Importantly, neither party has suggested in this case that the children did not have a meaningful relationship with the other parent, or that the boys did not have a relationship of value with each other. The father’s attitude, as expressed in these texts, simply ignores those relationships and the value of them to the boys.
Y returned to school at the start of this year with the mother giving an undertaking that she would not attend the school and remove him. Whatever her actions were before, this again was the mother acting responsibly. This has led to the rather odd situation where the boys see each other only at school. They arrive and leave by separate gates and each go home to a separate parent with whom they live. This is grossly unsatisfactory and is not at all in their best interests.
Both parties agree that the boys should be reunited yet they have not been. The father proposes that both boys spend either two days or alternatively five nights per fortnight with the mother. Notwithstanding that express stated position, it remains that Y has not seen his mother since 15 December 2023.
No explanation for that course has been offered by the father. Indeed, his text on 25 December 2023 proposes that the boys spend nine nights a fortnight with the mother, yet nothing of the kind has happened. The mother submitted that this action by the father was coercive and controlling behaviour by using Y as a lever to get the orders that he wanted. The father’s response was that the mother failing to agree to those orders was essentially doing the same.
The task before the Court is not to ascribe blame and to punish a parent, but to make orders for the future care of the children that are in the children’s best interests. In this case, that will be for a few months only. An ICL has been ordered but not yet appointed and a comprehensive family report is being arranged.
What is in the best interests of the children is determined by the considerations set out in s 60CC of the Family Law Act 1975 (Cth), but the parties in the course of their submissions touched on only a few. This of course is an interim hearing and the Court is cautious about making any final findings of fact that are disputed. However, as I have said, it is not disputed by the parties that the children would benefit from a meaningful relationship with each parent. This is recognised in each of the three proposals before the Court.
The mother, as I have said, submitted that the father’s refusal to let Y see his mother unless she agreed to his orders is coercive and controlling behaviour has some force, but it is not necessary to decide the question on this application. The important question is the likely effect of the parties’ conduct on the children.
The mother submitted that family violence had occurred because the father had smacked the children, however it is clear that she has done so as well. It is not disputed that the father has hit one of the children in the face and smashed a light switch, both of which are of course poor conduct. The mother did not seem to raise any objection to the former at least when it happened.
The mother raised issues of derogatory and denigrating conduct by the father during the relationship which is disputed in general terms. That is a matter I am unable to take further on this application and in the circumstances, in any event, it would seem to carry little weight.
It follows, therefore, that there is no unacceptable risk of harm to the children in either household.
There is no evidence of the views of the children.
The real issue then is the parenting capacity of each party and the attitude of them to each of the children and to the responsibilities of parenthood. I consider that the actions of the mother in November 2023 and the father on 15 December 2023 show both parents in a less than desirable light. However, what happened thereafter I find persuasive.
After the mother was satisfied by the negative drug test and the provision of the prescription for marijuana, she made a sensible and reasonable proposal to the father on 22 December 2023. Clearly, it was in the boys’ best interests that they gather on Christmas Day, see the mother on Christmas Day and be reunited.
The father’s reply was dismissive of those interests. The continuation of preventing Y from spending time with his mother and his brother other than when they both happened to be at school remains unexplained. There is no reason that has been put forward as to why Y has not seen his mother or his brother. Thus whilst the father is clearly capable of providing for the basic needs of the children, he is prepared to prioritise what he regards as his rights over the best interests of the children. It follows therefore that he should not have sole parental responsibility for the children or be the primary carer of them pending the resolution of these proceedings.
The question then becomes which of the two remaining sets of orders should be made. The mother’s proposal is, in my opinion, too narrow and involves a changeover in person. A better course would be for the children to spend time with the father on Monday morning so that changeovers can be effected at school. That would also give him three nights a week with the children.
Whether there should be time during the alternative week is more difficult. There has been substantial shared time in the past and indeed the mother proposed such an arrangement in December 2023. However, I consider that such an arrangement is not now in the children’s best interests. Y in particular needs time to settle into the new arrangements, having been away from his mother and his brother for some three months, but so does X. The mid-week changeover in the alternative week would be disruptive and, given the concerns about the father’s parenting capacity that I hold and his attitude to the children, I consider that it is in their best interests that their time with the father be limited to the three nights a fortnight.
The appropriate order for the school holidays is that the children spend half of the short school holidays with each parent. It will only be about a week or so with each and is justifiable because, as I say, there are no serious risks of harm posed to them by either parent.
I do not propose to make an order for parental responsibility. There is no evidence to justify the making of an order that the mother has sole parental responsibility for health. True it is that the parties had a very conflicted relationship and have difficulty agreeing, however, the significant health issue that was resolved, albeit with some disagreements and difficulties, was the provision of psychologists for the children on which the parties were ultimately able to agree.
I think it is best that the father’s time not start for a couple of weeks so that the children can settle into it. As such, that time will start on 15 March 2024.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 29 February 2024
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