Coulter & Coulter
[2008] FMCAfam 1348
•13 October 2008
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 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;
(c)The way the tenets of each religion will interrelate if the parents maintain connection with their current religion;
(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.
The parties shall share equally the costs of the Theologian and Uniquest.
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.
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.
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.
That the costs of the Court Expert are to be paid by the parties equally.
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.
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.
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.
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.
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.
That the matter be adjourned for mention to 9.30am on 18 February 2009 in the Federal Magistrates Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Coulter & Coulter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 8015 OF 2008
| MR COULTER |
Applicant
And
| MS COULTER |
Respondent
REASONS FOR JUDGMENT
Since the recording of history, religion has divided nations. Today it divides these families. The parties to this proceeding involve the husband, who is about 35 years of age, the wife who is about 40 years of age and a child, [S], who is now about 8 years of age. There is an elder child of the marriage but he is not sought to be the subject of orders today.
The parties met and ultimately married in the Uniting Church in a suburb of Sydney in November 1999. They appear to have been of adherence to that faith for some time. [S] was baptised into that particular religion and has attended Sunday school from time to time as conducted by that religion.
In 2001, at least it would seem, that the mother sought to move her allegiances from that particular faith to a faith which was described as one conducted by a "charismatic" church. I am not certain what that means but, in any event, I am familiar with the Hillsong church by reason of its publicity on Four Corners last year. It is, I gather, a Christian faith. I am not certain how it might be branded but, in any event, it is something that approaches an orthodox religious faith as apprehended by most Australians.
The wife appears to have been involved in that between 2001 and 2003. There is no evidence about what precisely ensued between 2003 and some time in 2007 but, I gather by reference to the material, that she has had predisposition towards various religious faiths and was involved in some religious faith before falling under the influence of the Jehovah's Witness faith some time in 2007 when she commenced what she describes as attending a "few meetings". By reference to the attendance to a "few meetings" I take it to mean that the wife had not ascribed completely to that particular brand of faith and was simply investigating the manner in which they practised their particular faith.
In early 2007 the parties relocated to the Gold Coast. Following that time the wife appears to have become a practising adherent of the Jehovah's Witness faith and continues to do so. There were allegations made in the material by the father about some pernicious aspects or allegedly pernicious aspects of that particular faith and those matters are in contest.
I note the father's allegations are supported by an article which was exhibited to an affidavit filed by his instructing solicitor but it is fair to say, notwithstanding that the article may accurately report those matters, that the matters detailed in the article relate to events in the United States. I think it is fair to say that the United States has a far more right-wing reactionary approach to religion than Australia has a history of, given this nation’s somewhat more secular approach to issues of faith.
But, in any event, I accept the criticism made by Mr Cooper of that particular article, given that it is merely expressing one view and has not been tested and, of course, is consistent with his client's submissions, and does not accurately represent what she contends her particular faith to be and mean. As I say, I also note as an aside that it pertains to the practise of that faith in the United States where, unquestionably, there tends to be a greater and somewhat more hysterical approach to these issues.
This case is a case that results in a contest which concerns some issue of inter-faith competition; one thing the Americans would not be unhappy with and consistent with the view of the Chicago School of Economists concerning issues of competition; however it is not the role of this Court to determine issues of qualitative matters of faith. That matter, I think, has been well and truly settled as was noted by the Full Court in the decision of Evers v Evers (1972) 19 FLR 296 which was applied in In the Marriage of Paisio [1972] FLC 90-659 where there the Court noted:
“It is clear that on general principles the Courts have recognised that it is no part of the judicial function to rule that one form of religion is to be preferred to another.”
The issue, as I see it, resolves here into what order ought to be made in the best interests of the child, [S], at least until trial. Goode & Goode [2006] FamCA 1346 sets out the general approach which of course requires the Court to commence by considering the two competing proposals.
In broad terms, the father has submitted by his counsel a draft of orders which effectively agrees all matters except the matter of religion. The effect of the orders proposed by the father are to see that the wife do not, by herself or her agents, involve the child in the practice of the Jehovah's Witness faith or take the child to a Jehovah's Witness Kingdom Hall, which I take to be a church, or to have the child remain in any place where adult occupants of the premises are engaged in witnessing, pioneering prayer services or studying of the religion of Jehovah's Witnesses. I take the terms "witnessing and pioneering" to be terms of art which are expressly relevant to the practice of the Jehovah's Witness faith.
Further, orders are sought that the child not be taken on any outing which involves preaching, witnessing or pioneering in any place, including a public place and finally that the child not be denied or refused recommended medical treatment, although I think it is fair to say on any view of the evidence, the mother does not propose to do so, although I make the observation that it appears from admissions made by the parties that there is a particular view taken by persons of the Jehovah's Witness faith about the provision of blood transfusion and like medical treatment.
There are consequential orders which flow principally in relation to what happens in the event that orders are made in those terms and I do not need to examine them.
The mother for her part of course simply seeks orders that while the children are with her she has their sole parental responsibility for the day‑to-day care, welfare and development of the children which includes in this instance the right to take the child, [S], to any of those services or other matters that are relevant to her conduct and practise of her faith.
As with all these cases there of course is no issue of status quo involved in determining what is the best interests outcome. Each case is assessed on an ab initio basis and I do so in this instance. Finally, I make the observation that – and particularly in the context of this case where there is a considerable body of contested material, particularly regarding the effect of the faith and allegations about its alleged pernicious aspects – those matters are entirely discounted because they are indeed in contest and it is inappropriate in the context of an interim application to deal with matters which involve ultimately a question of resolution of issues of contested fact.
Having regard to the limited scope of the orders which are sought by each of the parties, it seems to me that we can move well past the need to consider matters of joint parental responsibility, the parties having essentially agreed those matters, to simply resolving this question of whether or not the mother should be entitled to take the child, [S], and have her participate in activities relevant to her faith while she is in her care between now and the trial when these issues can be resolved on a final basis.
Of course one must commence by reference to the underlying principles provided for in the Family Law Act1975 (“the Act”) which, so far as are relevant in this instance, I see them as being to protect the child from physical or psychological harm or being exposed to abuse, neglect or family violence. In particular in this instance the question of protecting the child from psychological harm or being exposed to abuse, if one describes indoctrination as a form of abuse and, of course, the principle which underlies the object and that is, of course, the right for the child to know and be cared for by both their parents and in particular in this case to be cared for by both parents which in turn, in my view, incorporates the child's right to know and develop an appreciation of the other parent's particular faith, irrespective of whether it might be regarded as idiosyncratic having regard to the views of the majority of society; again, bearing in mind that it is not the Court's position to embark upon any subjective assessment of a qualitative nature of the relative merits of competing faiths.
That, of course, leads the Court to look really at determining this issue by reference to the best interests of the child as a paramount consideration which, in turn, directs the Court into the s.60CC of the Act considerations. The first consideration is not material in this instance because the child will live equally in both parents' households.
The second consideration, as I have earlier identified, is that which calls upon the need to consider protecting the child from psychological harm and in this instance is not, in my view, supported by any evidence and accordingly it follows that that particular consideration could not support the proposal advanced by the father.
So far as the views of the child are concerned, the child of course is too young to express any particular views and, of course, it would mean that that consideration is neutral in terms of the analysis of this dispute.
Next is the nature of the relationship of the child with each of the child's parents. In this instance it is clear that this particular child has a close and continuing relationship with both the child's parents. The child has been involved it would seem, particularly from the father's part, in his cultural aspects. It would seem that the mother has also sought to involve the child in hers and so it would seem that so far as that consideration is concerned, it does not advance the proposals postulated by either of the parties.
Next is the question of the willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship between the child and the other parent. That calls upon the Court to consider the matters provided for in s.60CC(4) of the Act and, in that instance, the Court must consider the extent to which each of the child's parents have fulfilled or failed to fulfil his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents have taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and to communicate with the child and have facilitated or failed to facilitate the other parent to do likewise.
Perhaps dealing with the latter two of the three sub considerations, in this instance there is no question that each parent has spent time with the child and communicated with the children and has facilitated the other parent to do likewise. An issue arises as to a question of participation in making decisions about major long term issues and perhaps the incapacity of each parent to facilitate that matter is best evidenced by this application.
They cannot agree on something which is obviously quite fundamental to the ongoing relationship between them so far as the child's religion is concerned yet, curiously, there is no debate about, for instance, which school the child will attend and that, quite clearly in practical terms, is perhaps a matter of greater significance than what particular faith the child is exposed to.
It seems again, having regard to the facts in this case, it is very difficult to discern one particular set of facts demonstrating any greater capacity on the part of one parent as opposed to the other, to either participate in making decisions or to facilitate or fail to facilitate the other parent to do likewise.
What we have here is essentially a philosophical divide between the parties, no doubt each based upon the parties' own value systems and their entrenchment in their respective positions does not, in my view, reflect either a failure to participate nor a failure to facilitate the participation of the other parent but simply identifies the divide which arises by reason of their particular philosophical positions.
On that basis, it seems to me again, there is nothing that I can see in that evidence which assists me in determining which of the two proposals can be preferred. Incidentally I take into account, when considering that matter, evidence of events that have occurred since separation, in particular the fact that the parties have reached, what could be described as, a working arrangement in relation to the ongoing arrangements for the younger child and the 17 year old child as well. Again, it seems in those circumstances that it is difficult to discern a preferred proposal having regard to post-separation events.
Next then is the likely effect of any changes in the child's circumstances including the likely effect on the child of any separation. The latter part of that consideration is perhaps not apposite in this instance, however what may be apposite of course is the likely effect of the change in any circumstances.
In this case there is no evidence of the child having suffered from attending, on the occasions that she has, at the Kingdom Hall but I am mindful of the fact that the child is a child who has been exposed to what could be broadly described as two orthodox faiths and is now introduced late in the piece to a new and perhaps less orthodox religious faith and the prospect of that matter will lead to a confusion in the mind of an 8 year old.
It is for that reason that I have debated with the parties the prospect of not only the opinion of a theologian in relation to the manner in which these religions can be differentiated in a philosophical sense but also on the matter of how a child of this age can deal with the significant philosophical divides which are apparent between the two religions. Let me say that in making that observation, the limit of my knowledge of these religions is broadly confined to observations made by other Courts in cases dealing with members of this particular faith. And it seems this faith is of a fundamentalist nature and that is, if you like, one of the principle distinguishing features of this faith from the more mainstream Christian faiths. Although in stating that I note for instance that I appreciate there is a significant psychological and theological divide between Catholics and Protestants, they are essentially both Christian faiths and have that matter in common.
So having regard to the prospect of the confusion that might be caused by the instruction in the two particular faiths and, in particular, having regard to the fact that the child, by the consent of the parties, presently attends a Catholic school where I would expect that the child is subject to instruction in that particular faith, there is, in my view, a significant risk here for an 8 year old of there being considerable confusion induced, at least in the short term, pending the final resolution of this matter and that if there was to be a significant change in circumstances which permitted her to be exposed to the full ambit of instruction from the Jehovah's Witness faith that change in circumstances may lead to exacerbation of confusion in an 8 year old in relation to these matters.
Let me say that in that regard I am mindful of a decision of Phipps FM in L & O [2005] FMCAfam 223 but consider that case is really distinguishable on its facts. This is a case where the cases were very similar in many respects in terms of background and age of the children. Indeed, in that case the children were being brought up in the Catholic faith and the father had elected to become involved in the Jehovah's Witness faith. In that instance the Court determined to not make any order as was sought in that case to restrain the father from exposing the children to the Jehovah's Witness faith until they were
10 years of age.
However that was a case where, in terms of the final orders, the children lived principally in the mother's household and his Honour was persuaded in that instance that because of the stability of the children's presence in the mother's household that household, if you like, provided the rock upon which the children's views and attitudes to and their exposure to a differing faith could always be sure at home such that in the event there was to be confusion, the children would always have at least one stable environment by which they could bench mark other behaviour.
In this instance, the parents agree there will be equal time and it follows in my view that this stable platform will not exist for a child of 8 years of age to effect, if you like, some source of solace in the event the child becomes confused or disturbed by what could be seen as extreme approaches by both one side and the other to views of religious faith. When I say "extreme" I do not mean they are extreme faiths, what I mean is that they approach the same object from different angles and the child, in my view, would probably have some difficulty reconciling all these approaches to what ultimately was described in Evers v Evers (1972) 19 FLR 296 as simply the top of the mountain. Different routes may, in my view, cause considerable confusion in the mind of an 8 year old. So it follows, in my view, that what should at least ensure until there can be a trial and the Court can be assisted in determining what is best for the child, that there be in place a regime which effects fewer changes in the child's circumstances and so the father's proposal, to that end, is to be preferred.
There are, in this instance, no questions of practical difficulty and expense in relation to the child spending time with the parent so that matter doesn't require further consideration. There is no issue in this case with the capacity of the child's parents to provide for the child including her emotional and intellectual needs. Again, that matter does not need further discussion nor, except in the manner which I have earlier discussed, do questions of maturity, sex, lifestyle and background of the child and of either of the parents and any other characteristics come into play. I have earlier addressed those matters in the context of dealing with the likely effect of changes, having identified the age of the child, the relevant background, including religious background, of the child and the mother's recent introduction to this new faith.
Next is the question of attitude to the child and to the responsibilities of parenthood demonstrated by each of the child's parents. Again, I have earlier addressed that matter in discussing the question of willingness and ability of each of the child's parents to facilitate and encourage a close and continuing relationship and again determined, so far as that consideration is concerned, the proposals are neutral.
It seems then, having regard to all of the matters I am required to consider under s.60CC of the ACT, that having considered them discretely and now considering them together, the overwhelming balance favours orders as proposed by the father and so there will be orders in those terms.
There was also, in addition to the application to deal with children's issues, an application sought on the part of the mother for an injunction against the father restraining the father from permitting his parents, the paternal grandparents, to move into or stay at the matrimonial home at Property B pending resolution of this matter.
The application is one for an injunction. The classic test provided is of course that first there must be a serious issue to be tried and second, having determined that there be a serious issue to be tried that the balance of convenience favours the relief sought.
In this instance there is, in my view, some difficulty breaching the threshold. It seems to me that what is sought by the wife is an injunction to restrain the husband from dealing with a property in respect of which she is in possession. There is no question, at this stage notwithstanding the wife's equity in the property, that the husband is not otherwise lawfully in possession of the property and accordingly, consistent with what I would regard as trite law, the husband is free to do as the lawful possessor of property or person in possession of property, that which is within his discretion, subject of course to not interfering with the rights of the wife; by that I mean for instance, embarking in behaviour which would diminish the value of the property or otherwise damage the property.
Although he is obviously a half owner of the property, he is, in effect, a tenant at will until the matters are resolved by a Court but, in any event, he is entitled as the person in possession of the property, to have whomsoever he chooses enter his property as an invitee. In this instance, it seems to me, that there is nothing advanced on the part of the wife to suggest that there is indeed any claim, any basis in law, which would entitle her to interfere with the husband's rights so far as he is the person in possession of the property and it would seem that any course of action on that basis would fail in limine.
On that basis, it would not be necessary for me to consider then the issue of balance of convenience but, in any event, in the event that I am wrong on that and there is indeed some right that the wife is able to point to which would give rise to a serious issue to be tried, it seems to me that what is proposed by the father is that his parents may move into the property and live with him at the property. There is no suggestion that the father proposes to extend to the parents any rights in respect of the property which extend beyond the rights of a husband. In other words, it is not proposed that the parents are being afforded a lease or any other rights that would serve to diminish the rights of the wife and one can understand, in the social context of a matrimonial dispute, that the father may indeed achieve considerable benefits from the presence of the wife.
In any event, even if that convenience did not favour the wife it strikes me that there is no reason why, if there were to be any breach or any action on the part of the husband that remedy and damages by way of, for instance, a sum which equates to the value of rental, would not be an appropriate remedy and, on that basis, the application for the injunction is refused.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of Burnett FM
Associate: Beverley Schmidt
Date: 15 December 2008
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