Matthews and Norris (No 3) - [2017] FamCA 461

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS (NO. 3)

[2017] FamCA 461

FAMILY LAW – CHILDREN – With whom the child lives – Where the child enjoys a meaningful relationship with both parties – Where both parties have the capacity to meet the child’s physical and intellectual needs – Where the dispute concerns the parties’ capacity to meet the child’s emotional needs – Where the child is too young and does not have the maturity to understand the long-term implications of his views – Concluded no weight should be reposed in the child’s views – Where the mother proposes to live with the child in New Zealand – Where the evidence most probably proves the mother will not be capable of allowing the child the emotional autonomy to continue her relationship with the father – Where the mother maintains she will cut off all contact with the child if an order is made for her to live with the father in Australia – Concluded the mother prioritises her own mental health and wellbeing over the child’s interests – Where the father is willing to allow the child the freedom to retain her relationships with both parents – Order the child live with the father and there are no prescriptive orders regulating the child’s interaction with the mother

Bankruptcy Act 1966 (Cth), s 60
Evidence Act 1995 (Cth), s 136
Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65D 65DAA, 65DAC, 65DAE

Family Law Rules 2004 (Cth), r 15.41

Betros & Betros [2017] FamCAFC 90
Daemar v Industrial Relation Commission of NSW (1988) 12 NSWLR 45
Jones v Dunkel (1959) 101 CLR 298
Kuhl v Zurich Financial Services (2011) 243 CLR 361
Sullivan & Tyler & Anor (No.2) [2016] FamCAFC 131

APPLICANT:

Mr Matthews

RESPONDENT:

Ms Norris

INDEPENDENT CHILDREN’S LAWYER:

Mr Scally, Legal Aid NSW, Newcastle

FILE NUMBER:

NCC

2226

2015

DATE DELIVERED:

30 June 2017

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

13, 14, 15 & 16 June 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Carty

SOLICITOR FOR THE APPLICANT:

Oliver Campbell Heslop Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kelly

SOLICITOR FOR THE RESPONDENT:

Derham Houston Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Scally, Legal Aid NSW, Newcastle

Orders

All former orders relating to the child B, born … 2010, are discharged.
The father shall have sole parental responsibility for the child.
The child shall live with the father.
Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment…

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 Matthews and Norris (No 3)

Details

AGLC: Matthews and Norris (No 3) [2017] FamCA 461
Case: [2017] FamCA 461
Decision Date: 30 June 2017

CaseChat Overview and Summary

In *Matthews and Norris (No 3)*, Austin J considered orders concerning a child, B, born in 2010. The dispute involved the parental responsibility and living arrangements for the child, as well as various ancillary orders designed to regulate the parents' future conduct and ensure the child's welfare.

The court was required to determine the appropriate orders regarding sole parental responsibility, the child's residence, and the extent of each parent's involvement in the child's life. Additionally, the court had to consider orders restraining the parents from denigrating each other, managing medical emergencies, facilitating school communication, and preventing the child's removal from Australia. The court also addressed the discharge of the Independent Children's Lawyer and the disposition of outstanding applications.

Austin J discharged all former orders relating to the child B and made new orders. The father was granted sole parental responsibility, and the child was ordered to live with the father. The court imposed significant restraints on both parents, including prohibitions against denigrating each other in the child's presence and requirements for notification of medical emergencies. Crucially, the father was given sole discretion regarding the child's time and communication with the mother, with no provision made for such contact in the orders. The court also made orders to prevent the child's removal from Australia and to facilitate communication between the father and the child's school.

Orders

Orders of the court

All former orders relating to the child B, born … 2010, are discharged.

The father shall have sole parental responsibility for the child.

The child shall live with the father.

Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.

Each party shall notify the other of any medical emergency, illness or injury suffered by the child whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the child.

The father shall authorise and request the principal of any school attended by the child to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the child.

Each party shall forthwith inform the other, and keep the other informed, in writing of their respective current postal address, mobile telephone number, and email address.

Each party is restrained from removing and/or causing or allowing, by their agents or otherwise, the removal of the child from the Commonwealth of Australia, and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the child’s name on that Watch List for a period of 12 months.

The parties are at liberty to provide a sealed copy of these orders to:

(a) Any authority entitled to issue Australian passports;

(b) Any authority with control over international departure points in Australia;

(d) The principal of any school attended by the child.

10.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

11.

The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

12.

Costs are reserved for 28 days.

13.

Any and all other outstanding applications are dismissed.

Notation

(A) These orders intentionally make no provision for the child to spend time or communicate with the mother. If, when, and how the child may do so are decisions the father shall make as an incident of his sole parental responsibility for the child.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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