Matthews & Anor and Matthews - [2011] FamCA 982

FAMILY COURT OF AUSTRALIA

MATTHEWS AND ANOR & MATTHEWS

[2011] FamCA 982

FAMILY LAW – CHIILDREN - With whom a child lives – cultural issues – parenting orders – Kupai Omasker cultural practice of giving and receiving children – order for child to live with maternal aunt and her husband - order that maternal aunt and her husband have sole parental responsibility for the child

Family Law Act 1975 (Cth) ss 60B, 60CC, 61B, 61F, 64B
Moses & Barton [2008] FamCA 590 MRR v GR [2010] HCA 4 Wilkie and Anor & Mirkja [2011] FamCA 667 Lowe & Barry and Anor [2011] FamCA 625 Donnell & Dovey [2010] FamCAFC 15

1st APPLICANT:

Ms S Matthews

2nd APPLICANT

Mr B

RESPONDENT:

Ms Matthews

FILE NUMBER:

CSC

2011

DATE DELIVERED:

22 December 2011

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns

JUDGMENT OF:

Benjamin J

HEARING DATE:

26 September 2011

REPRESENTATION

COUNSEL FOR THE 1^ST APPLICANT:

In person

SOLICITOR FOR THE 1^ST APPLICANT:

COUNSEL FOR THE 2^ND APPLICANT:

In person

SOLICITOR FOR THE 2^ND APPLICANT:

COUNSEL FOR THE RESPONDENT:

In person

SOLICITOR FOR THE RESPONDENT:

Orders

The child D born … 2005 (“the child”) live with Ms S Matthews and Mr B (“the applicants”).
The applicants have sole parental responsibility for the child.
That there be no contact between the child and Ms Matthews (“the respondent”) except as permitted by the applicants or either of them and excluding any extended family and social gatherings when the families might be together in line with the Region E customary practice of the giving and receiving of children.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
This matter be removed from the list of cases requiring determination.
IT IS NOTED
The Court notes the information provided by Ms F.
IT IS DIRECTED
A transcript of the submissions be taken out and placed on the Court file.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Matthews and Anor & Matthews is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC64/2011

Ms S Matthews

First Applicant

And

Mr B

Second Applicant

And

Ms Matthews

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The culture of Region E includes the traditional practice of giving and receiving children within families and that is the circumstances of the child who is the subject of these proceedings and upon whom decisions must be made.[1]
[1] Moses & Barton [2008] FamCA 590 at paragraph 1.
In Moses and Barton [2008] FamCA 590 Moore J,…

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 & Anor and Matthews

Details

AGLC: Matthews & Anor and Matthews [2011] FamCA 982
Case: [2011] FamCA 982
Decision Date

CaseChat Overview and Summary

The parties to this proceeding were Ms S Matthews and Mr B, the applicants, and Ms Matthews, the respondent. The dispute concerned parenting orders for a child, D, born in 2005. The applicants sought orders that the child live with them and that they have sole parental responsibility. They also sought an order that there be no contact between the child and the respondent, except as permitted by the applicants, and excluding any extended family and social gatherings in line with the Region E customary practice of giving and receiving children. The matter was heard in the Family Court of Australia at Cairns by Benjamin J.

The primary legal issue before the court was whether the parenting orders sought by the applicants were in the best interests of the child, D, pursuant to the Family Law Act 1975 (Cth). This required the court to consider the paramount consideration of the child's best interests, as outlined in section 60CA of the Act, and to have regard to the primary and additional considerations set out in section 60CC. Specifically, the court needed to determine how the traditional practice of "giving and receiving children" within the Region E culture, and the child's right to enjoy his culture, factored into these best interests, alongside the usual considerations of parental relationships and the child's welfare.

Benjamin J reasoned that the court's jurisdiction in relation to children is governed by the Family Law Act, with the paramount consideration being the best interests of the child. The court noted that the child had been living with the applicants since he was six months old, in accordance with the Region E customary practice of giving and receiving children, a practice integral to the society and social bonds of the Region E people. The respondent consented to the orders sought, and there were no disputed issues. The court considered the provisions of section 60B regarding the objects of the Act, including the benefit to the child of meaningful involvement with both parents and the right to enjoy their culture. The court also considered the provisions relating to parental responsibility, including the presumption of equal shared parental responsibility under section 61DA, and the factors for determining a child's best interests under section 60CC.

The court made orders that the child D live with the applicants, Ms S Matthews and Mr B, and that they have sole parental responsibility for the child. The court further ordered that there be no contact between the child and the respondent, Ms Matthews, except as permitted by the applicants, and excluding any extended family and social gatherings when the families might be together, in line with the Region E customary practice. The court also noted that the particulars of the obligations and consequences of these orders were set out in an attached Fact Sheet, which was included in the orders. The matter was then removed from the list of cases requiring determination.

Orders