Bartlett and Anor and Farley and Anor - [2009] FMCAfam 1237

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BARTLETT & ANOR & FARLEY & ANOR

[2009] FMCAfam 1237

FAMILY LAW – Children – residence – Aboriginal child – application by maternal grandmother that child should live with her – child’s mother deceased – whereabouts of child’s father not known – best interests of the child – child’s right to enjoy his Aboriginal culture under Family Law Act 1975 (Cth) s.60B(3) and s.60CC(3)(h) – psychological harm – no family violence.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61F, 64C, 65AA, 65C, 65DAA

Thomas v Farley & Anor (1980) FLC 90-840
In the Marriage of B & R (1995) 19 Fam LR 594
Davis & Davis & Spring [2007] FamCA 1149; (2008) 38 Fam LR 671
R & R (1985) FLC 91-615
Mr B & Ms F & Mrs F & Mr B Snr [1998] FamCA 239
Tuite & Wall [2003] FMCAfam 262
Ms P & Mr B [1998] FamCA 765
In re: CP [1997] FamCA 10
Mazorski v Albright [2007] FamCA 520; (2008) 37 Fam LR 518
Goode v Goode [2006] FamCA 1346; (2007) 36 Fam LR 422

First Applicant:

MS BARTLETT

Second Applicant:

MR THOMAS

First Respondent:

MRS D FARLEY

Second Respondent:

MS J FARLEY

File Number:

LEC 11 of 2008

Judgment of:

Scarlett FM

Hearing dates:

24,25 & 26 September, 15 & 16 December 2008

Date of Last Submission:

1 April 2009

Delivered at:

Sydney

Delivered on:

9 December 2009

REPRESENTATION

Counsel for the First Applicant:

Mr Duane

Solicitors for the First Applicant:

Jane Adams Lawyer

Solicitor for the Second Applicant:

Mr Hammond

Solicitors for the Second Applicant:

Legal Aid NSW

Counsel for the First Respondent:

Ms Gillies

Solicitors for the First Respondent:

G.A. Guthrie Solicitors

Counsel for the Second Respondent:

Mr Blond

Solicitors for the Second Respondent:

MacDonald & MacDonald Solicitors

Counsel for Independent Children’s Lawyer:

Mr Theobold

Solicitors for Independent Children’s Lawyer:

Burridge Harris & Flynn Solicitors

ORDERS

The child [A] born [in] 2004 is to live with the maternal grandmother MS BARTLETT and the maternal uncle MR THOMAS.
MS BARTLETT and MR THOMAS are to have shared parental responsibility for the said child.
The child [A] is to spend time with MRS D FARLEY and MS J FARLEY as follows:
(a)each alternate weekend during the school term time from after school or pre-school each Friday until before school or pre –school the following Monday morning provided that where the Monday is a public holiday the child is to remain with MRS D FARLEY and MS J FARLEY until 4:00pm on the Monday;
(b)for the first half of all school holidays with the exception of the Christmas/January school holidays;
(c)for two weeks during the Christmas/January school holidays in each year commencing on the day after New Year’s Day;
(d)from 9:00 am until 1:00 pm each alternate Christmas Day commencing on Christmas Day 2010;
(e)from 9:00 am to 1:00 pm each alternate Boxing Day commencing on Boxing Day 2009;
(f)from 4:00 pm to 6:00 pm on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FMCAfam 1237
Decision Date: 9 December 2009

CaseChat Overview and Summary

Bartlett and Anor and Farley and Anor involved a dispute over the care of a child born in 2004. The case was heard in the Family Court of Australia. The primary concern was the determination of the child's living arrangements and the allocation of parental responsibility. The maternal grandmother, MS Bartlett, and the maternal uncle, MR Thomas, sought primary care of the child, while the maternal aunt and cousin, MRS D Farley and MS J Farley, desired a significant role in the child’s life. The court was tasked with deciding the most appropriate living arrangement for the child, the allocation of parental responsibility, and the visitation rights for the non-primary caregivers.

The legal issues addressed by the court included whether the child should primarily reside with the maternal grandmother and uncle, the extent of shared parental responsibility, and the specifics of visitation rights for the maternal aunt and cousin. The court had to balance the best interests of the child with the desires and capabilities of the various family members involved. In making its decision, the court considered the stability and environment provided by MS Bartlett and MR Thomas, as well as the importance of maintaining relationships with other family members.

The court determined that the child should live primarily with MS Bartlett and MR Thomas, awarding them shared parental responsibility. It established a detailed schedule for the maternal aunt and cousin to spend time with the child, including specific arrangements for weekends, school holidays, and special occasions. The court also included provisions to ensure the child’s welfare and to prevent conflict between the parties. These included restrictions on derogatory comments in the child's presence, the prohibition of changing the child’s surname, and measures to ensure the child’s safety when in the care of MR P. Additionally, the court mandated that the maternal grandmother and uncle facilitate the maternal aunt and cousin's access to the child's school documents and health information, and required all parties to participate in mediation or counselling.

The court's final orders outlined specific living arrangements, visitation rights, and conditions to protect the child's well-being and maintain family harmony. The child was to reside primarily with MS Bartlett and MR Thomas, with detailed visitation schedules for the maternal aunt and cousin. The court also imposed restrictions on the parties to prevent conflict and ensure the child's safety and welfare.

Orders

Orders of the court

The child [A] born [in] 2004 is to live with the maternal grandmother MS BARTLETT and the maternal uncle MR THOMAS.

MS BARTLETT and MR THOMAS are to have shared parental responsibility for the said child.

The child [A] is to spend time with MRS D FARLEY and MS J FARLEY as follows:

(a) each alternate weekend during the school term time from after school or pre-school each Friday until before school or pre –school the following Monday morning provided that where the Monday is a public holiday the child is to remain with MRS D FARLEY and MS J FARLEY until 4:00pm on the Monday;

(b) for the first half of all school holidays with the exception of the Christmas/January school holidays;

(d) from 9:00 am until 1:00 pm each alternate Christmas Day commencing on Christmas Day 2010;

(e) from 9:00 am to 1:00 pm each alternate Boxing Day commencing on Boxing Day 2009;

(f) from 4:00 pm to 6:00 pm on the child’s birthday in each year; and

(g) at such other times as the parties shall agree.

The parties are restrained from denigrating or making critical comments about each other in the presence or hearing of the child.

The parties are restrained from changing the child’s surname from THOMAS-FARLEY to any other surname.

The parties are to ensure that the child is not left unsupervised in the care of MR P at any time.

MS BARTLETT and MR THOMAS are to do all such things and sign all necessary documents to allow MRS D FARLEY and MS J FARLEY to obtain at their own expense copies of all school reports, newsletters and other documents normally provided to parents of children attending the child’s school.

MS BARTLETT and MR THOMAS are to advise MRS D FARLEY and MS J FARLEY of any illness or injury sustained by the child requiring treatment at a hospital or by a specialist medical practitioner.

The said MS BARTLETT, MR THOMAS, MRS D FARLEY and MS J FARLEY are to attend mediation or counselling about issues relating to the child with a child and family counsellor through Interrelate or an Aboriginal community based organisation in the Coffs harbour for such time as the child and family counsellor shall deem necessary.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MS J MS J MS J MS J MS J

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Ratio Decidendi

Legal Principle Established

Established by: MS J, MS J, MS J, MS J, MS J

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