Morton & Berry

In the case of Morton & Berry, the appellant, the father, appealed against the decision of the Family Court, which dismissed his application for parenting orders concerning the parties' minor child. The primary judge had rejected the father's application for parenting orders on the basis that there had been no change in circumstances since the previous parenting orders were made by consent, and that the best interests of the child were to remain with the mother. The father contested the decision, arguing that there had been a significant change in circumstances, specifically the child's wish to live with him, and that the primary judge had failed to properly consider the child's views and other relevant factors.

The legal issues before the court were whether the primary judge had taken into account irrelevant matters and failed to give proper consideration to the child's wishes, and whether the primary judge had erred in not ordering a family report to canvass the child's view. The court also considered whether the father's evidence should be taken at its highest and whether the child's view had changed with age and maturity. The court examined the principles established in Rice & Asplund and the Full Court's decision in Poisat, which emphasised the importance of taking into account best interests considerations and legislative requirements.

The court found that the primary judge had indeed taken into account irrelevant matters and had failed to give proper consideration to the child's wishes and other relevant factors. The court held that the primary judge had erred by not ordering a family report to canvass the child's view, as the child had not expressed a view in earlier proceedings which resulted in consent orders. The court also found that the father's evidence should be taken at its highest and that the child's view had changed with age and maturity. The appeal was allowed, and the case was remitted for rehearing by a different judge.

The court made several orders, including allowing the appeal, granting costs certificates to both parties, and remitting the appellant's amended initiating application for rehearing by a judge other than Judge Donald. The court's decision highlighted the importance of considering the best interests of the child and the need for the primary judge to properly assess the child's views and other relevant factors in parenting cases.