Moses and Barton - [2008] FamCA 590

FAMILY COURT OF AUSTRALIA

MOSES & BARTON

[2008] FamCA 590

FAMILY LAW – CHILDREN – With whom a child lives – cultural issues – Parenting orders – 10 year old child – Kupai Omasker cultural practice of giving and receiving children – child given to father and his deceased wife as a newborn baby – order for child to live with father in the Torres Strait and spend time regularly in the school holidays with the mother

Family Law Act 1975 (Cth)

APPLICANT:

Ms Moses

RESPONDENT:

Mr Barton

FILE NUMBER:

CSC

685

2007

DATE DELIVERED:

30 July 2008

PLACE DELIVERED:

Cairns

JUDGMENT OF:

Moore J

HEARING DATE:

19, 22, 23 October 2007, 18 & 25 February and 21 & 22 July 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McPherson

SOLICITOR FOR THE APPLICANT:

Edna Cuthbertson & Co

COUNSEL FOR THE RESPONDENT:

Ms Willis

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

COUNSEL FOR THE INDEPENDENT

CHILD’S LAWYER:

Ms Benson

SOLICITOR FOR THE INDEPENDENT

CHILD’S LAWYER:

Lehmann Featherstone

Orders

1.Ms Moses and Mr Barton are to have equal shared parental responsibility for the child born […] October 1997 [‘the child’] save that Mr Barton is to be solely responsible for determining the school she will attend for the remainder of her primary schooling and for her secondary schooling.
2.The child is to live with Mr Barton in the Torres Strait.
3.Until the child attends secondary schooling away from her father’s home she is to spend time with Ms Moses at all times agreed but not less than these periods:
(a)all of the Easter school holiday period;
(b)one half of the June/July school holiday period;
(c)all of the September/October school holiday period;
(d)four weeks of the Christmas school holiday period.

4.After the child attends secondary schooling away from her father’s home she is to spend time with Ms Moses at all times agreed but not less than these periods:
(a)      one half of the Easter school holiday period each year;
(b)      one half of the June/July school holiday period in each year;
(c)      one half of the September/October school holiday period each year;
(d)      one half of the Christmas School holiday period each year;
5.Unless otherwise agreed the half times specified in orders 3 and 4 are to be the first half in even numbered years and the second half in odd numbered years.
6.Until the child commences her secondary schooling away from her father’s home when the child travels to spend time with Ms Moses in accordance with Order 3:
(a)Ms Moses is to organise and pay for the child to travel to her home in Cairns from the child’s home in the Torres Strait for the duration of the times agreed or specified;
(b)Mr Barton is to organise and pay for the child to travel to his home in the Torres Strait from Cairns.

7.After the child commences secondary schooling away from her father’s home if Government funding does not fully meet her costs of travel during school holidays between…

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 Moses and Barton

Details

AGLC: Moses and Barton [2008] FamCA 590
Case: [2008] FamCA 590
Decision Date: 30 July 2008

CaseChat Overview and Summary

In the matter of Moses and Barton, heard by Moore J, the dispute concerned parenting orders for a child born in October 1997. The proceedings involved Ms Moses and Mr Barton, who sought to establish arrangements for their child's residence, time spent with each parent, and decision-making responsibilities.

The court was required to determine the extent of shared parental responsibility, the primary residence of the child, and the specific periods of time the child would spend with each parent. Further issues included the allocation of responsibility for the child's schooling decisions, the arrangements and costs associated with the child's travel between residences, and the communication protocols between the child and each parent. The court also considered the appointment of a Family Consultant to supervise compliance with the orders.

Moore J made orders for equal shared parental responsibility, with Mr Barton having sole responsibility for determining the child's schooling. The child was ordered to live with Mr Barton in the Torres Strait. Specific provisions were made for the child's time with Ms Moses, both before and after commencing secondary schooling away from her father's home, with detailed arrangements for school holidays. The court also established protocols for travel costs and communication between the child and each parent.

Pursuant to s65L of the relevant Act, a Family Consultant, Ms K, was appointed for 12 months to supervise compliance with the orders and provide assistance to the parties. The Family Consultant, if practicable, was also to inform the child of the orders made.

Orders

Orders of the court

1. Ms Moses and Mr Barton are to have equal shared parental responsibility for the child born […] October 1997 [‘the child’] save that Mr Barton is to be solely responsible for determining the school she will attend for the remainder of her primary schooling and for her secondary schooling.

2. The child is to live with Mr Barton in the Torres Strait.

3. Until the child attends secondary schooling away from her father’s home she is to spend time with Ms Moses at all times agreed but not less than these periods:

(a) all of the Easter school holiday period;

(b) one half of the June/July school holiday period;

(d) four weeks of the Christmas school holiday period.

4. After the child attends secondary schooling away from her father’s home she is to spend time with Ms Moses at all times agreed but not less than these periods:

(a) one half of the Easter school holiday period each year;

(b) one half of the June/July school holiday period in each year;

(d) one half of the Christmas School holiday period each year;

5. Unless otherwise agreed the half times specified in orders 3 and 4 are to be the first half in even numbered years and the second half in odd numbered years.

6. Until the child commences her secondary schooling away from her father’s home when the child travels to spend time with Ms Moses in accordance with Order 3:

(a) Ms Moses is to organise and pay for the child to travel to her home in Cairns from the child’s home in the Torres Strait for the duration of the times agreed or specified;

(b) Mr Barton is to organise and pay for the child to travel to his home in the Torres Strait from Cairns.

7. After the child commences secondary schooling away from her father’s home if Government funding does not fully meet her costs of travel during school holidays between her school and each residence to comply with the times specified in Order 4 then the costs of her travel not covered by funding is to be shared equally between Ms Moses and Mr Barton.

8. When the child is living with Mr Barton:

(a) the child is to be at liberty to communicate with Ms Moses at all reasonable times she wishes by telephone, email or post;

(b) Ms Moses is to be at liberty to communicate with the child by email and post at all reasonable times and is to be at liberty to communicate with her by telephone:

(i) Wednesdays and Sundays between 6.30pm and 7.00pm [or other two days or times agreed with Mr Barton] and

(ii) on special occasions.

9. Whenever the child is spending time with Ms Moses:

(a) the child is to be at liberty to communicate with Mr Barton at all reasonable times she wishes by telephone, email or post;

(b) Mr Barton is to be at liberty to communicate with the child by email and post at all reasonable times and is to be at liberty to communicate with her by telephone:

(i) Wednesdays and Sundays between 6.30pm and 7.00pm [or other two days or times agreed with Ms Moses] and

(ii) on special occasions.

10. Pursuant to s65L a Family Consultant, Ms K if possible, is appointed for a period of 12 months to supervise, as far as practicable, the compliance with these orders and she give any party such assistance as is reasonably requested by that party in relation to compliance with, and the carrying out of these orders.

11. If practicable, the Family Consultant, Ms K, in company with Mrs J, is to see the child for the purpose of telling her of the orders made.

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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