BAGLEY and JANZ - [2020] FCWA 64

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: BAGLEY and JANZ [2020] FCWA 64
CORAM: TYSON J
HEARD: 31 MARCH 2020
DELIVERED : 29 APRIL 2020
FILE NO/S: PTW 5565 of 2015
BETWEEN: MR BAGLEY
Applicant
AND
MS JANZ
Respondent

Catchwords:

CHILDREN – Application to spend time with child – Rice and Asplund – Change of circumstances not established – Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Mrs F
Independent Children's Lawyer	:	Ms A

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	HHG Legal Group
Independent Children's Lawyer	:	Legal Aid WA

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

Finton & Kimble [2017] FCWA 106
Finton & Kimble [2020] FCWA 7
Marsden & Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788

TYSON J:

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Bagley & Janz has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1 [Ms Janz], the mother, wants the father, [Mr Bagley]’s most recent application seeking parenting orders in relation to their only child, [E], to be dismissed without the need to proceed to a final hearing. It is that discrete application which is to be determined.

2 After separation, the parents were involved in lengthy and protracted litigation. An Independent Children’s Lawyer (“ICL”) was appointed for E. [Dr J] was appointed as the Single Expert Witness.

3 The trial was heard before Justice Duncanson on 2, 3, 4, 5 October 2017, 19, 20, 21, 22 March 2018 and 25 September 2018. At trial, the father sought orders for the parents to have equal shared parental responsibility for E and the child’s time with the father to gradually increase to a week about arrangement. The mother sought that she have sole parental responsibility for E, the child live with her and not spend any time with the father. The ICL supported the mother’s application for no contact.

4 On 8 November 2018 the trial judge published her Reasons for decision and made final orders. Those orders provided for the mother to have sole parental responsibility for E and the father not spend time, nor communicate with the child unless agreed in writing by the mother. The father was restrained by an injunction from approaching within 100 meters of the child, contacting the child, attending the child’s school or attending the mother or the maternal grandparents’ home. The father was given permission to send a gift and a letter or card to the child on four occasions each year and for her birthday, at Christmas and at Easter.

5 On 25 February 2019 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.

Continue reading BAGLEY and JANZ

Details

AGLC: BAGLEY and JANZ [2020] FCWA 64
Case: [2020] FCWA 64
Decision Date

CaseChat Overview and Summary

This case concerns an application by the father, Mr Bagley, to vary the parenting orders made by Justice Duncanson in 2018. The orders provided for the mother, Ms Janz, to have sole parental responsibility for their daughter E and for the father to have no contact with E unless agreed in writing by the mother. The father seeks for the orders to be varied so that both parents have equal shared parental responsibility for E and for the father to spend unsupervised time with E. The mother opposes the father’s application and seeks for it to be dismissed. The Independent Children's Lawyer supports the mother's application for dismissal. The court was required to determine whether there was a prima facie case of changed circumstances sufficient to warrant a final hearing. The court found that the father had not established such a case. While the father had taken steps to address his behaviour, the court found he had not sufficiently addressed the risk to E of exposure to his attitudes and conduct towards the mother. The father's evidence continued to be critical of the mother and did not demonstrate insight into the impact of his conduct on the mother and E. The court also found that there was not a likelihood of the orders being varied in a significant way, or there being a sufficient benefit to compensate for the disruption caused by re-litigating the matter. The court considered the proposals of the Independent Children's Lawyer, who suggested a review be conducted by Dr J, upon E turning 12 years old. The court accepted that the proposals had significant merit and proposed to hear from the parties as to the form of the orders. The court dismissed the father's application, subject to hearing from the parties as to the form of the orders for Dr J to conduct a review when E is 12 years old, subject to Legal Aid funding, with such review to be limited to the parents only in the first instance.

Orders