BAGLEY and JANZ

Case [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…

Continue reading BAGLEY and JANZ

Sign in free to access the full text

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

Orders of the court

Full text does not contain this section.

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

Full text does not contain this section.