Morton and Cooke - [2016] FCCA 1022

FEDERAL CIRCUIT COURT OF AUSTRALIA

MORTON & COOKE

[2016] FCCA 1022

Catchwords:
FAMILY LAW – Parenting – 5 year old child – matter proceeded in absence of Father – coercive and controlling family violence – Mother and Child at risk – impact of Father’s conduct on Child – no time with Father.

Legislation:

Family Law Act 1975, ss.4, 60CA, 60CC, 61DA, 65DAA, 65DAC, 68B

Cases cited:
Russell v Close (unreported, Family Court of Australia, Fogarty, Baker and Lindenmayer JJ, 25 June 1993)

Applicant:

MS MORTON

Respondent:

MR COOKE

File Number:

SYC 3710 of 2013

Judgment of:

Judge Sexton

Hearing date:

2 February 2016

Date of Last Submission:

2 February 2016

Delivered at:

Sydney

Delivered on:

2 May 2016

REPRESENTATION

Solicitors for the Applicant:

No appearance

Counsel for the Respondent:

Mr P. Campton

Solicitors for the Respondent:

Gordon & Barry Lawyers Pty Ltd

Advocate for the Independent Children’s Lawyer:

Ms K. Shea

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission

ORDERS

All previous parenting Orders be discharged.
The Mother have sole parental responsibility for making decisions in relation to major long term issues for the Child, X, to be known as X, born on (omitted) 2010 (“the Child”).
The Mother have sole parental responsibility for any decisions in relation to the day to day care, welfare and development of the child.
The Child live with the Mother.
The Child spend no time with the Father.
In the event the Father wishes to give the Child gifts, the Father be at liberty to do so subject to the following conditions:
(a)the Mother’s lawyers provide the Father with a postal address within 7 days of the date of these Orders;
(b)any gift shall be sent by the Father to the nominated postal address;
(c)the Father’s communications shall be limited to sending a gift for the Child on the following occasions each year; the Child’s birthday and Christmas; and
(d)the Mother shall be at liberty to inspect all gifts sent to the Child and in the event the Mother deems the gifts to be inappropriate or otherwise contrary to the terms of these Orders, not give them to the Child.
The Mother be authorised to forthwith apply to the New South Wales Registry of Births, Deaths and Marriages to change the name of “X” born on (omitted) 2010 to “X” on the Register referred to in Section 43 of the Births, Deaths and Marriages Act 1995, without the Father’s consent.
From the date of the making of these Orders, and pending the approval of the Registrar of the NSW Registry of Births, Deaths and Marriages, of the changes referred to in Order 7 above:
(a)“X” born on (omitted) 2010 shall be known as and referred to as “X”.
Pursuant to Section 68B of the Family Law Act 1975, the Father is hereby restrained by injunction from directly or indirectly, whether through a third party or otherwise, from:
(a)approaching and/or remaining within 100 metres of the Child;
(b)entering, approaching and/or remaining…

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 Morton and Cooke

Details

AGLC: Morton and Cooke [2016] FCCA 1022
Case: [2016] FCCA 1022
Decision Date: 2 May 2016

CaseChat Overview and Summary

In Morton and Cooke, heard before Judge Sexton, the dispute concerned parenting arrangements for the child, X. The orders made by the court indicate a significant breakdown in the relationship between the parents, with the mother seeking and being granted sole parental responsibility and the child living with her, while the father was to have no direct contact.

The court was required to determine the most appropriate parenting orders for the child, X, considering the circumstances presented. This included deciding on parental responsibility for major long-term issues and day-to-day care, where the child would live, the extent of any time the child would spend with the father, and the father's ability to communicate with or provide gifts to the child. Furthermore, the court had to consider the child's name change, international travel arrangements, and the father's access to and use of social media in relation to the child and the proceedings.

The court's reasoning, as evidenced by the extensive orders, points to a determination that the child's welfare and safety necessitated a significant restriction on the father's involvement. This included granting the mother sole parental responsibility, ordering the child to live with the mother and have no time with the father, and imposing strict conditions on any gifts the father might wish to provide. The court also authorised the mother to change the child's name and to travel internationally with the child without the father's consent. Crucially, the father was restrained by injunction from approaching or contacting the child or the mother, and from removing the child from Australia. The court also made detailed orders regarding the father's social media activity, including the deactivation of his Facebook account and the removal of all photographs and comments relating to the child, with significant consequences for non-compliance. The court also addressed the child's Medicare arrangements, ensuring the child was not linked to the father's card.

Orders

Orders of the court

All previous parenting Orders be discharged.

The Mother have sole parental responsibility for making decisions in relation to major long term issues for the Child, X, to be known as X, born on (omitted) 2010 (“the Child”).

The Mother have sole parental responsibility for any decisions in relation to the day to day care, welfare and development of the child.

The Child live with the Mother.

The Child spend no time with the Father.

In the event the Father wishes to give the Child gifts, the Father be at liberty to do so subject to the following conditions:

(a) the Mother’s lawyers provide the Father with a postal address within 7 days of the date of these Orders;

(b) any gift shall be sent by the Father to the nominated postal address;

(c) the Father’s communications shall be limited to sending a gift for the Child on the following occasions each year; the Child’s birthday and Christmas; and

(d) the Mother shall be at liberty to inspect all gifts sent to the Child and in the event the Mother deems the gifts to be inappropriate or otherwise contrary to the terms of these Orders, not give them to the Child.

The Mother be authorised to forthwith apply to the New South Wales Registry of Births, Deaths and Marriages to change the name of “X” born on (omitted) 2010 to “X” on the Register referred to in Section 43 of the Births, Deaths and Marriages Act 1995, without the Father’s consent.

From the date of the making of these Orders, and pending the approval of the Registrar of the NSW Registry of Births, Deaths and Marriages, of the changes referred to in Order 7 above:

(a) “X” born on (omitted) 2010 shall be known as and referred to as “X”.

Pursuant to Section 68B of the Family Law Act 1975, the Father is hereby restrained by injunction from directly or indirectly, whether through a third party or otherwise, from:

(a) approaching and/or remaining within 100 metres of the Child;

(b) entering, approaching and/or remaining within 100 metres of any premises at which the Child lives and/or may be staying from time to time;

(c) entering, approaching and/or remaining within 100 metres of the Child’s kindergarten and/or school, including before and/or after school care and/or vacation care at which the Child may be enrolled from time to time;

(d) entering, approaching and/or remaining within 100 metres of any premises and/or venues at which the Child may be present in respect of any extra curricular, sporting and/or other school and/or externally organised activities;

(e) removing and/or attempting to remove the Child from the Mother’s care whatsoever, including through third parties and whether or not the Mother is present;

(f) removing and/or attempting to remove the Child from the Child’s kindergarten and/or school, including before and/or after school care, vacation care and/or extra-curricular activities, sporting and/or other school and/or externally organised activities, including through third parties and whether or not the Mother is present;

(g) uploading and/or posting any photographs and/or comments in relation to the Child and/or in relation to these proceedings and any associated proceedings, including but not limited to any domestic violence and/or criminal proceedings whatsoever via social media and/or internet sites; and

(h) contacting the Child by any means whatsoever including through third parties other than as provided for in these Orders.

10.

Pursuant to Section 68B of the Family Law Act 1975, the Father is hereby restrained by injunction from directly or indirectly, whether through a third party or otherwise, from:

(a) approaching and/or remaining within 100 metres of the Mother;

(b) entering, approaching and/or remaining within 100 metres of any premises at which the Mother lives and/or may be staying from time to time;

(c) entering, approaching and/or remaining within 100 metres of any premises at which the Mother may work, study and/or be employed from time to time;

(d) assaulting, molesting, harassing, threatening or otherwise interfering with the Mother and/or any member of the Mother’s family;

(e) engaging in any other conduct that intimidates the Mother and/or any member of the Mother’s family;

(f) stalking the Mother and/or any member of the Mother’s family;

(g) abusing, belittling and/or otherwise denigrating the Mother and/or members of the Mother’s family via social media and/or any other electronic means or otherwise; and

(h) contacting the Mother by any means whatsoever.

11.

Pursuant to s.65Y(2)(b) of the Family Law Act 1975, the Mother be authorised to travel with the Child outside the Commonwealth of Australia, or to give her certified written consent for the Child to travel, without the Father’s consent.

12.

The Child is permitted to travel internationally with the Mother, or with the Mother’s certified written consent, as provided for by s.11(1)(b) of the Australian Passports Act 2005 and for this purpose the Mother is permitted to apply for and obtain the issue and renewal of an Australian passport for the Child under the provisions of the Australian Passports Act 2005, without the Father’s consent.

13.

For the avoidance of any doubt, the Child’s passports shall be retained by the Mother at all times.

14.

The Father be restrained by injunction from applying for any passport of the Child including but not limited to an Australian and/or (nationality omitted) passport for the Child.

15.

The Father, Mr Cooke, born on (omitted) 1973 by himself, his servants and/or agents be and is hereby restrained from removing, attempting to remove, causing and/or permitting the removal of the Child, X aka X born on (omitted) 2010 (female), or other such name as the child may be legally known by from the Commonwealth of Australia.

16.

The Australian Federal Police give effect to Order (15) by forthwith placing the name of the Child, X aka X born on (omitted) 2010, on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Airport Watch List until 6 September 2028.

17.

The Australian Federal Police are hereby authorised to cause the removal of the name of the Child, X aka X born on (omitted) 2010, from the Watch List for the sole purpose of permitting the Child to travel outside Australia in accordance with Order (12) and the Mother shall pay any costs to any relevant authority associated with same.

18.

The Father shall within 7 days of the date of these Orders take all steps and do all acts to:

(a) permanently deactivate his Facebook account currently under the profile name “Mr Cooke”; and

(b) delete all photographs of the Child and written posts made by him and/or received by him in relation to the Child from Facebook or any other internet/social media sites; and

19.

The Father within 24 hours of notice, take all steps and do all acts and use his best endeavours to ensure that no third party posts any photographs of the Child and/or makes any comments in relation to the Child and/or these proceedings and any associated proceedings on any internet/social media sites and that he cause any such photographs and/or comments to be immediately deleted and permanently removed from any such internet/social media sites, including but not limited to Facebook, Instagram, Twitter and any other social internet sites.

20.

That in the event the Father fails to comply with Orders 18 and 19 above, the Australian Federal Police and any other relevant authority are hereby authorised and directed to cause any photographs and/or comments relating to the Child and/or these proceedings and any associated proceedings to be deleted and permanently removed and to permanently deactivate and/or shut down any social media and/or internet sites or accounts, including but not limited to the Facebook account currently under the profile name “Mr Cooke” in order to ensure the Child’s right to privacy and full compliance with these Orders.

21.

The Mother or her legal representative serve a copy of these Orders on X’s school Principal, the Australian Federal Police, the N.S.W Police and pursuant to s.121 of the Family Law Act 1975, the Mother be permitted to publish these Reasons for Judgment to the N.S.W. Police.

22.

That authorised officer(s) of Medicare Australia be hereby authorised to forthwith transfer the Mother (Ms Morton born (omitted) 1973) and the Child (X aka X born (omitted) 2010) to a new Medicare Card and to issue a separate Medicare Card to the Father (Mr Cooke, born (omitted) 1973) without the said Child.

23.

That to facilitate strict compliance with Order 22 above all authorised officer(s) of Medicare Australia are hereby authorised to ensure that the Child (X aka X born (omitted) 2010) is at no time copied onto or otherwise transferred to the Father’s Medicare Card under any circumstance.

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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