NORSE & HOWIE - [2011] FamCA 699

FAMILY COURT OF AUSTRALIA

NORSE & HOWIE

[2011] FamCA 699

FAMILY LAW - CHILDREN – whether the child should spend time with or communicate with the maternal grandmother when the father and the Independent Children’s Lawyer oppose any such order – where the evidence of the expert witnesses supports no order being made – where the maternal grandmother does not accept the evidence of the expert witnesses but has presented no alternative expert evidence to challenge what they say – where the mother has discontinued her response and elected to take no further part in the proceedings – where the child has been diagnosed as suffering from a reactive attachment disorder and a moderate intellectual disability with delayed language development and is receiving ongoing therapy and counselling – where the maternal grandmother lacks insight into the child’s special needs – where consideration must be given to the child’s right to enjoy his Aboriginal culture – where the father does not dispute that it is important for the child to be exposed to his Aboriginal heritage, culture and language and is prepared to do whatever is necessary to facilitate that – where it is found that it is in the best interests of the child not to spend time with or communicate with the maternal grandmother – where the maternal grandmother is to be provided with regular updates on the child’s progress in therapy and counselling and schooling – all previous orders discharged – child to live with the father.

Family Law Act 1975 (Cth) s60B(1), (2) & (3), s60CA, s 60CC(2)(b), (3)(a), (3)(b)(ii), 3(d), (3)(f)(ii), 3(g), (3)(h), (3)(j), (3)(l) & (3)(m), s 61C, s 61DA(1) & (4), s 65DAA(1) & (2)

Aldridge & Keaton (2009) FLC 93-421
Donnell & Dovey (2010) 42 Fam LR 559
Kitsannis & Netopoulis & Anor [2010] FamCAFC 214
Malcolm & Monroe and Anor (2011) FLC 93-460
McCall & Clark (2009) FLC 93-405
Mulvaney & Lane (2009) FLC 93-404

APPLICANT:

Mr Norse

RESPONDENT:

Ms Howie

INDEPENDENT CHILDREN’S LAWYER:

Karen Tydeman

FILE NUMBER:

ADC

1741

2007

DATE DELIVERED:

5 September 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

22-25 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms T Lewis

SOLICITOR FOR THE APPLICANT:

Scales & Partners

COUNSEL FOR THE RESPONDENT:

Mr M Forth

SOLICITOR FOR THE RESPONDENT:

Mark Forth & Associates

THE INDEPENDENT CHILDREN’S LAWYER

Ms K Tydeman, Legal Services Commission of SA

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr D Childs

Orders

That all previous orders made in relation to the child J born … July 1999 be discharged.
The said child live with the father.
Within fourteen [14] days of receiving the same the father provide to the maternal grandmother copies of:
(a) any reports that he receives from Mr P, Psychologist and any other health professional in relation to the progress of the said child;
(b) any school report in relation to the said child.
Within fourteen [14] days of any change the maternal grandmother inform the…

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.

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Details

Case: [2011] FamCA 699
Decision Date: 5 September 2011

CaseChat Overview and Summary

The case of *Norse & Howie* concerned an application by the maternal grandmother for orders that the child spend time with and communicate with her. The father and the Independent Children’s Lawyer opposed any such orders. The child had been diagnosed with a reactive attachment disorder and a moderate intellectual disability with delayed language development, and was receiving ongoing therapy and counselling. The maternal grandmother lacked insight into the child’s special needs and did not accept the evidence of the expert witnesses, presenting no alternative expert evidence. The mother had discontinued her response and taken no further part in the proceedings. The court was presided over by Strickland J.

The primary legal issue before the court was to determine what orders, if any, should be made regarding the child spending time with or communicating with the maternal grandmother, having regard to the best interests of the child. This required the court to consider the various factors outlined in section 60CC of the *Family Law Act 1975* (Cth), including the need to protect the child from harm, the nature of the child's relationship with other persons, the capacity of any person to provide for the child's needs, and the child's right to enjoy their Aboriginal culture.

Strickland J found that it was in the best interests of the child not to spend time with or communicate with the maternal grandmother. This conclusion was reached after considering the expert evidence, which supported no orders being made, and the maternal grandmother's lack of insight into the child's specific needs. While acknowledging the importance of the child's Aboriginal heritage, culture, and language, the court noted the father's willingness to facilitate this. The court applied the principles of section 60CC of the *Family Law Act 1975* (Cth), weighing the relevant considerations, and determined that the child's safety and well-being were paramount.

Consequently, the court ordered that all previous orders be discharged and that the child live with the father. The father was ordered to provide the maternal grandmother with regular updates on the child’s progress in therapy, counselling, and schooling. The court also made orders regarding the notification of address changes and discharged the order appointing an Independent Children’s Lawyer, dismissing all other applications.

Orders

Orders of the court

That all previous orders made in relation to the child J born … July 1999 be discharged.

The said child live with the father.

Within fourteen [14] days of receiving the same the father provide to the maternal grandmother copies of:

(a) any reports that he receives from Mr P, Psychologist and any other health professional in relation to the progress of the said child;

(b) any school report in relation to the said child.

Within fourteen [14] days of any change the maternal grandmother inform the father of her new residential address and telephone number.

Within fourteen [14] days of any change the father inform the maternal grandmother of his new residential address.

The order made on 28 May 2007 for the appointment of an Independent Children’s Lawyer be discharged.

All applications and responses be otherwise dismissed and removed from the active pending cases list.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Under the provisions of s 60CC, in determining what is in the best interests of the child, the Court must consider the following matters so far as they might be relevant in each particular case, that is:Primary considerations(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. (Section 60CC(2))Additional considerations(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;(b) the nature of the relationship of the child with:(i) each of the child’s parents; and(ii)other persons (including any grandparent or other relative of the child);(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:(i) either of his or her parents; or(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;(f) the capacity of:(i) each of the child’s parents; and(ii)any other person (including any grandparent or other relative of the child);to provide for the needs of the child, including emotional and intellectual needs;(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;(h) if the child is an Aboriginal child or a Torres Strait Islander child:(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and(ii)the likely impact any proposed parenting order under this Part will have on that right;(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;(j)any family violence involving the child or a member of the child’s family;(k)any family violence order that applies to the child or a member of the child’s family, if:(i) the order is a final order; or(ii) the making of the order was contested by a person;(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;(m)any other fact or circumstance that the court thinks is relevant.(Section 60CC(3))