Alba and Alba & Ors - [2022] FCWA 206

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: ALBA and ALBA & ORS [2022] FCWA 206
CORAM: DUNCANSON J
HEARD: 18, 19, 20, 22, 26, 27, 28, 29 OCTOBER, 8, 29, 30 NOVEMBER, 1, 2, 3 DECEMBER 2021, 11, 12, 13 APRIL, 16, 17 MAY 2022
DELIVERED : 6 OCTOBER 2022
FILE NO/S: [Redacted]
BETWEEN: MR ALBA
Applicant
AND
MRS ALBA
First Respondent
AND
MS OLSEN
Third Respondent
AND
MR and MRS OLSEN
Fourth Respondents

Catchwords:

CHILDREN - best interests - where the children live with the father and have not spent time with the mother for seven years - where the mother committed an act of significant family violence upon the father for which she served a prison sentence - where both parents and the mother's family members seek orders that the children live with each of them - where the mother maintains she is innocent of the crime of which she was convicted - where it is necessary to provide the children with an "independent truth" - where the children wish to see the mother - where it is found neither parent poses a risk of unacceptable harm to the children - consideration of the risk of the father's parenting capacity being eroded if orders are made that the children spend time with the mother and whether that risk can be ameliorated - where the Court must balance the benefit to the children of having a relationship with both of their parents with the risk of emotional harm posed by the mother and the impact on the father's parenting capacity - where it is in the best interests of the children to live with the father and he have parental responsibility for them and to spend gradually increasing time with the mother - where due to the complexity of the children's circumstances interim orders are made

Legislation:

Criminal Code 1913 (WA) s 294(1)
Family Law Act 1975 (WA) s 4, s 4AB(1), s 60B, s 60CA, s 60CC, s 61DA, s 102NA(2)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr A
First Respondent	:	Mr B & Ms H
Third Respondent	:	Self-Represented Litigant
Fourth Respondents	:	Self-Represented Litigant
Independent Children's Lawyer	:	Ms C/ Mrs O

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Law Firm B
Third Respondent	:	Self-Represented Litigant
Fourth Respondents	:	Self-Represented Litigant
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

Alba and Alba & ORS [2020] FCWA 130
Alba and Alba & ORS [2021] FCWA 188
Alba and Alba & ORS [2021] FCWA 191
Appeal Court citation redacted
Blinko and Blinko [2015] FamCAFC 146
Isles & Nelissen [2022] FedCFamC1A 97
Keane v Keane and Anor (2021) 62 Fam LR 190
M v M (1988) 166 CLR 69
Re Andrew (1996) FLC 92-692
Stott & Holgar and Anor [2017] FamCAFC 152

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT…

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 Alba and Alba & Ors

Details

AGLC: Alba and Alba & Ors [2022] FCWA 206
Case: [2022] FCWA 206
Decision Date

CaseChat Overview and Summary

The case of Alba and Alba and Others involved a contentious dispute over the living arrangements and parenting responsibilities of [Child A] and [Child B], the children of [Mr Alba], the applicant father, and [Mrs Alba], the respondent mother. The children had not seen the mother since October 2015 when she stabbed the father with a knife during a handover of [Child B]. The father suffered life-threatening injuries and continues to suffer from PTSD. The mother was convicted of grievous bodily harm with intent and served a prison sentence, which she maintains was wrongful. Both parents and the maternal family sought orders that the children live with them. The court had to balance the benefit to the children of having a relationship with both parents against the risk of emotional harm posed by the mother and the impact on the father's parenting capacity.

Duncanson J determined that it was in the best interests of the children to live with the father, who would have sole parental responsibility. The court found that the children wished to see the mother and that it was beneficial for them to have a meaningful relationship with both parents. However, the risk posed by the mother's narrative of the 2015 incident and the impact on the father's capacity to parent were significant concerns. To mitigate these risks, the court ordered a gradual reintroduction of the children to the mother, with initial visits supervised by an independent person. Over time, the children would spend increasing amounts of time with the mother, including overnight visits, subject to a review by the Independent Children's Lawyer and, if practicable, the single expert witness. The court also ordered that the mother and maternal family be restrained from contacting the children and the father. The children would continue their fortnightly therapy to support the reintroduction process.

Orders