Coulter & Coulter - [2008] FMCAfam 1348

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COULTER & COULTER

[2008] FMCAfam 1348

FAMILY LAW – Children – religion – inter-faith competition – best interests of the child – right for the child to know and be cared for by both parents – incorporates the child’s right to know and develop an appreciation of the other parent’s particular faith.

Family Law Act 1975 (Cth)

Goode & Goode [2006] FamCA 1346
Evers & Evers (1972) FLR 296
L & O [2005] FMCAfam 223
In the Marriage of Paisio [1979] FLC 90-659

Applicant:

MR COULTER

Respondent:

MS COULTER

File Number:

BRC 8015 of 2008

Judgment of:

Burnett FM

Hearing date:

13 October 2008

Date of Last Submission:

13 October 2008

Delivered at:

Brisbane

Delivered on:

13 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Kent

Solicitors for the Applicant:

Evans & Company

Solicitors for the Respondent:

Charles Cooper Lawyers

ORDERS

That excepting the issue of religion, the Applicant Husband and Respondent Wife have joint parental responsibility for the child [S], born in 2000.
That the Applicant Husband be solely responsible for and exercise sole parental responsibility in relation to the issue of the religion of the child.
That subject to these Orders, each party shall have sole parental responsibility for the day to day care, welfare and development of the child, whilst the child is in that party’s care.
The Respondent Wife is, without admission of liability, restrained and an injunction is hereby granted restraining the Wife whether by herself, her servants or agents from:-
(a)In any way involving the child in the practice of the Jehovah’s Witness faith;
(b)Taking the child to or allowing her to be taken to or remain in any Kingdom Hall or other venue where the Jehovah’s Witness faith is being practiced or studied in a formal setting whether for witnessing, pioneering, prayer services or studying the religion of Jehovah’s Witnesses;
(c)Taking the child to or allowing her to be taken to or remain in any place where the adult occupants of the premises are engaged in witnessing, pioneering, prayer services or studying the religion of Jehovah’s Witnesses;
(d)Taken the child on any outing which involves preaching, witnessing or pioneering in any place including a public place or from door to door; and
(e)Causing the child to be denied or refused recommended medical treatment.
That excepting any holiday plans or occasions of illness, the Applicant Husband shall continue to take and accompany the child to the Uniting Church, [location omitted] for services on Sunday mornings.
The child shall live with the each of the parties as follows:-
(a)Subject to paragraph 4 hereof, on a week about basis as follows:-
(i)Commencing in week one, the child shall live with the Husband between 8.30am on Monday morning until 8.30am on the next Monday; and
(ii)Then commencing in week two, the child shall live with the Wife from 8.30am Monday until 8.30am Monday in the following week; and
(iii)In the event that the Wife attends a Jehovah’s Witness meeting, congregation or…

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.

Continue reading Coulter & Coulter

Details

AGLC: Coulter & Coulter [2008] FMCAfam 1348
Case: [2008] FMCAfam 1348
Decision Date: 13 October 2008

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Coulter & Coulter involved a dispute between the husband and wife regarding the upbringing of their child, [S], born in 2000. The central issues included the allocation of parental responsibility, particularly concerning the religious upbringing of the child, and the division of parenting time between the parties. The husband, an adherent of the Uniting Church, and the wife, a member of the Jehovah's Witnesses, had opposing views on the religious education of their child. The court was tasked with determining how to balance the parents' religious beliefs while ensuring the child's welfare and development.

The court addressed the legal issues by first establishing that, except for religious matters, the parents would share joint parental responsibility. It was decided that the husband would have sole responsibility for the child's religious upbringing, specifically related to the Uniting Church. This decision was made considering the husband's strong commitment to his religious beliefs and the potential harm to the child if exposed to conflicting religious practices. The court also imposed restrictions on the wife to prevent her from involving the child in Jehovah's Witness activities. Furthermore, the court set out a detailed schedule for the child's residence between the parents, aiming to provide stability and reduce conflict.

The court's reasoning was rooted in the best interests of the child, with a particular focus on the potential harm that exposure to conflicting religious practices might cause. By assigning sole responsibility for religious matters to the husband, the court aimed to maintain a consistent religious environment for the child, thereby minimizing confusion and potential conflict. The detailed residence schedule was designed to provide the child with a balanced and stable living arrangement, while the restrictions on the wife were intended to prevent interference with the husband's religious upbringing of the child. The final orders ensured that the child's welfare remained the paramount consideration, with specific provisions to protect the child from undue religious influence and to facilitate a harmonious co-parenting relationship.

Orders

Orders of the court

That excepting the issue of religion, the Applicant Husband and Respondent Wife have joint parental responsibility for the child [S], born in 2000.

That the Applicant Husband be solely responsible for and exercise sole parental responsibility in relation to the issue of the religion of the child.

That subject to these Orders, each party shall have sole parental responsibility for the day to day care, welfare and development of the child, whilst the child is in that party’s care.

The Respondent Wife is, without admission of liability, restrained and an injunction is hereby granted restraining the Wife whether by herself, her servants or agents from:-

(a) In any way involving the child in the practice of the Jehovah’s Witness faith;

(b) Taking the child to or allowing her to be taken to or remain in any Kingdom Hall or other venue where the Jehovah’s Witness faith is being practiced or studied in a formal setting whether for witnessing, pioneering, prayer services or studying the religion of Jehovah’s Witnesses;

(c) Taking the child to or allowing her to be taken to or remain in any place where the adult occupants of the premises are engaged in witnessing, pioneering, prayer services or studying the religion of Jehovah’s Witnesses;

(d) Taken the child on any outing which involves preaching, witnessing or pioneering in any place including a public place or from door to door; and

(e) Causing the child to be denied or refused recommended medical treatment.

That excepting any holiday plans or occasions of illness, the Applicant Husband shall continue to take and accompany the child to the Uniting Church, [location omitted] for services on Sunday mornings.

The child shall live with the each of the parties as follows:-

(a) Subject to paragraph 4 hereof, on a week about basis as follows:-

(i) Commencing in week one, the child shall live with the Husband between 8.30am on Monday morning until 8.30am on the next Monday; and

(ii) Then commencing in week two, the child shall live with the Wife from 8.30am Monday until 8.30am Monday in the following week; and

(iii) In the event that the Wife attends a Jehovah’s Witness meeting, congregation or anticipates one of the matters in paragraph 4 (a) – (d) hereof may occur, the Wife shall deliver the child to the Husband for the duration of such meeting, congregation or any matter dealt with in those sub-sections.

(b) For the purposes of this Order, the conclusion of each week, shall unless the child has a public holiday, pupil free day or is ill, conclude upon the child’s delivery to her school attendance on Monday mornings PROVIDED THAT in the event of public holiday, pupil free day or illness, the parties shall deliver the child to the residence of the other parent at 8.30am on Monday morning.

(c) During school holiday periods, the week about arrangements in 6a and 6b hereof shall be suspended and in lieu, the child shall spend one half of her school holidays with each parent PROVIDED THAT in the absence of agreement, the child shall spend:-

(i) The first half of such holidays with the Husband in 2008 and each alternate year thereafter;

i. The second half of such holidays with the Husband in 2009 and each alternate year thereafter; and

(ii) The balance of each school holiday period with the Wife.

(d) On special occasions:-

(i) In the event that the Wife intends to celebrate the child’s birthday, the Wife’s birthday, Mother’s Day, Easter or Christmas, the child shall spend one half of such periods with the Wife as agreed.

(ii) In the event that the Wife does not intend celebrating the occasions referred to in 6di hereof, then the child shall spend such periods with the Husband.

(iii) The child shall spend Father’s Day and the Husband’s birthday with the Husband.

The parties shall ensure that each is provided with information which is held or maintained by any medical practitioner or school at which the child attends.

Each of the parties shall attend upon Ms Sue Waterman for the purposes of her preparing a family report and shall meet the costs of such family report equally.

That the parties jointly correspond with the entity known as Uniquest for the purposes of appointing an expert Theologian to report upon:-

(a) The differences between the Uniting Church religion and the Jehovah’s Witness religion;

(b) The way the tenets of each religion will interrelate if the parents divorce;

(d) The way the children are included in each religion and the issues which will face the child and the parents as a result of the differing religions;

(e) Whether there are any aspects of either religion or the participation in same which will impact upon the child;

(f) Whether, taking into account the subjective position of each parent concerning their religion, a consideration of the intended involvement in religion and how that will impact upon the child; and

(g) Any pertinent information about the religions which the Court should consider in a parenting dispute between parties of these different religions.

10.

The parties shall share equally the costs of the Theologian and Uniquest.

11.

That the nominated expert shall be deemed to have been appointed as a Court Expert in the matter pursuant to Rule 15.09 of the FMC Rules in the matter.

12.

That the Court Expert shall be provided with a joint letter of instructions (including any instructions that may be given by the Court) but if the parties are unable to agree or for any reason the joint instructions cannot be obtained then they shall each provide a letter of instructions to the Court Expert within 14 days after the appointment. The parties shall advise the Court Expert the date before which the report is required.

13.

That the parties cause the Court Expert to provide a report to the parties and the Court in response to the appointment, at least 7 days before the conciliation conference or mediation.

14.

That the costs of the Court Expert are to be paid by the parties equally.

15.

That the Court Expert and the parties shall have liberty to apply to list the matter on the giving of two (2) days notice for any further directions and for that mention the Court Expert shall have leave to appear via the telephone. The parties shall provide a copy of these orders to the Court Expert.

16.

That the parties cause any final report of the Court Expert and any expert who is to give evidence on behalf of any party be filed and served by no later than 28 days prior to the date of hearing.

17.

That each party put any statement of facts (other than the facts relied on by the expert) to be contended for by that party and any questions for consideration by the expert by no later than 14 days prior to the date of hearing.

18.

That the parties cause the expert to use his/her best endeavours to provide a written response to such statement of facts and/or questions by no later than 7 days prior to the date of hearing.

19.

Where any party corresponds or communicates with the expert such correspondence or minute of any such communication is to be copied by that party to the other parties. Where any communication, by correspondence or otherwise is received by any party from the expert then that party shall copy the other party any such correspondence or minute of such communication.

20.

That the matter be adjourned for mention to 9.30am on 18 February 2009 in the Federal Magistrates Court of Australia at Brisbane.

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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