H and H - [2003] FMCAfam 31

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & H

[2003] FMCAfam 31

FAMILY LAW – Children – specific issues order – cultural and religious issues – child lives with his mother and has regular contact with his father – father wants child to attend religious school – mother wants child to attend a state school – attendance at a religious school likely to influence child’s identity towards the same religion – child should not be exposed to a religious education inconsistent with the values that he will be exposed to day by day.

EVIDENCE – Expert opinion evidence – anthropological and sociological evidence – Lebanese/Australian community in western suburbs of Sydney described – patriarchy common to both Lebanese Muslim and Lebanese Catholic Maronite communities – order that child attend a secular state school.

Family Law Reform Act 1995
Family Law Act 1975, ss.60, 65, 68
Evidence Act 1995 (NSW), ss.36–80
Native Title Act 1993, s.146

In the Marriage of Horman [1976] FLC 90-024
In the Marriage of N and H [1982] FLC 91-267
Sanders and Sanders (1976) FLC 90-078
Torrens and Flemming (1980) FLC 90-840
Goudge & Goudge (1984) FLC 91-534
Paisio (1979) FLC 90-659
Hanrahan v Hanrahan (1972) 19 FLR 262
Plows v Plows (1979) FLC 90-712
K v K (1979) FLC 90-680
Firth v Firth (1988) FLC 91-971
Hornsey (1998) Fam CA 7
B and B: Family Law Reform Act 1995 (1997) FLC 92-755
Vlug and Poulos (1997) FLC 778
Re G: Children’s Schooling (2000) FLC 93-025
Makita (Australia) P/L v Sprowles, 52 NSWLR 705
HG v R (1999) 197 CLR 414

Applicant:

R H

Respondent:

J H

File No:

PAM2966 of 2002

Delivered on:

9 April 2003

Delivered at:

Parramatta

Hearing dates:

10 and 11 February 2003

Judgment of:

Ryan FM

REPRESENTATION

Counsel for the Applicant:

Mr J. Wilson

Solicitors for the Applicant:

Takchi & Associates

Counsel for the Respondent:

Ms L. Judge

Solicitors for the Respondent:

Navado Solicitors

ORDERS BY CONSENT

That all prior parenting orders are discharged.
That the child J E H (“the child”) born 9 November 1999 live with the applicant mother.
That the applicant mother have responsibility for the day to day care, welfare and development of the child when he is in her care.
That the respondent father have responsibility for the day to day care, welfare and development of the child when he is in his care.
That the mother and father are jointly responsible for making decisions about the child’s long term care, welfare and development.
That both parties are restrained from removing the child from the state of New South Wales without the prior written consent of the other parent.
That both parties shall advise the other parent within forty-eight hours of any change in the child’s residential address. Both parties are restrained from changing the child’s usual place of residence beyond the Sydney metropolitan area without the other parent’s prior written consent.
That both parties shall provide the other party with mobile phone number and…

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

AGLC: H and H [2003] FMCAfam 31
Case: [2003] FMCAfam 31
Decision Date: 9 April 2003

CaseChat Overview and Summary

The matter before the court involved a dispute in family law proceedings with cultural nuances requiring anthropological evidence. Dr Tabar, an expert in Lebanese/Australian community studies, provided evidence based on participant observation within the western suburbs of Sydney. The court had to determine the admissibility and reliability of Dr Tabar's evidence, particularly given its reliance on participant observation rather than empirical research. Furthermore, the court considered the implications of using such evidence in family law proceedings and compared it to the provisions of the Native Title Act 1993, which allows for the use of evidence from other proceedings.

The court found that Dr Tabar's evidence was reliable due to his extensive knowledge of the specific community, despite the lack of empirical research. The court highlighted the importance of anthropological evidence in family law cases involving cultural nuances but noted the limited availability and high cost of such research. The court suggested that the Family Law Act should include provisions similar to section 146 of the Native Title Act 1993, allowing courts to use reliable research from other cases and findings from other courts exercising the same jurisdiction. This approach could maximize the use of such evidence without additional systemic costs.

In conclusion, the court accepted Dr Tabar's evidence as reliable and emphasised the need for cultural considerations in family law proceedings. The court recommended legislative changes to the Family Law Act to facilitate the use of anthropological evidence in similar cases. This would ensure that the benefits of such evidence are realised at minimal additional cost to the system.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

During his oral testimony Dr Tabar conceded that his research and opinions are not informed by empirical research. Whilst that is often a valid criticism, the nature of this witnesses evidence is not undermined by its absence. There are a few anthropological studies of the Lebanese/Australian community. The available research derives from participant observation, which is extensive consultation and interaction with the community. Dr Tabar demonstrated an intimate knowledge of the particular community, and I am satisfied that he is qualified to express an opinion in relation to it. My findings are limited to the Lebanese/Australian community located in the western suburbs of Sydney. While aspects of the evidence may have wider application, the detailed sociological evidence derives primarily from participant studies conducted in a specific region. Absent participant information, aspects of the opinion lack foundation. In family law proceedings findings anthropological or sociological findings as a general rule are inadmissible in other proceedings, whether between the same or different parties. This type of evidence is important yet rarely available. Obtaining it can be expensive and the pool of available experts is limited. For litigants of limited means obtaining it may be beyond their means. In native title legislation the Native Title Tribunal may receive evidence given in other proceedings. That way expensive research can be used in associated litigation. This is possible because of the provisions of s.146, Native Title Act 1993. Section 146 is set out below:“S146: Evidence and findings in other proceedings In the course of an inquiry, the Tribunal may, in its discretion: (a) receive into evidence the transcript of evidence in any other proceedings before: (i) the Tribunal; or (ii) a court; or (iii) a recognised State/Territory body; or (iv) any other person or body; and draw any conclusions of fact from that transcript that it thinks proper; and (b) adopt any report, findings, decision, determination or judgment of any court, person or body mentioned in any of subparagraphs (a)(i) to (iv) that may be relevant to the inquiry. “ Courts exercising jurisdiction under the Family Law Act 1975 are increasingly required to determine matters that have significant cultural nuances and ramifications. It seems to me that the Family Law Act should include a similar provision to s.146 of the Native Title Act 1993. In like cases, the court could use reliable research presented in other cases as well as have regard to findings made in a court exercising the same jurisdiction. Potentially this would maximise the benefit of this type of evidence at virtually no additional cost systemically. Dr Tabar emphasised that second generation Lebanese Australian young people must resolve the extent to which they feel Australian and the extent to which they feel Lebanese. Describing it as “the concept of hybridity” he observed that these young people use their Australianness to strategically break down parental constraints and values that are Lebanese. Beyond their home, if identified by the community as Lebanese they feel Lebanese. For these young people their identity is confused, in essence one moment they are Lebanese and one moment Australian. A challenge for this generation is acceptance by the dominant culture and its expectations of a minority culture.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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