DARCY and EVANS - [2021] FCWA 81

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: DARCY and EVANS [2021] FCWA 81
CORAM: O'BRIEN J
HEARD: 17 MARCH 2021
DELIVERED : 12 MAY 2021
FILE NO/S: PTW 2576 of 2013
BETWEEN: MS DARCY
Applicant
AND
MR EVANS
Respondent

Catchwords:

PARENTING - Where the wife has commenced proceedings seeking to set aside parenting orders made following a trial - Where there is a long history of litigation, including two trials, and the wife maintains various beliefs as to risk issues which were found at both trials to be unsupported by evidence - Consideration of the rule in Rice and Asplund - Where the only matter raised by the wife demonstrating a change of circumstances sufficient to justify further litigation is the question of whether the child should change schools - All other aspects of the application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Ms Hossen

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Perth Divorce Lawyers

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

Banks & Banks (2015) FLC 93-637
Darcy and Evans [2019] FCWA 253
Dautry & Wemple (2018) FLC 93-876
Elmi & Munro (2019) FLC 93-912
Evans and Darcy [2019] FCWA 274
Evans and Evans [2015] FCWA 73
Evans and Evans [2018] FCWA 238
Evans and Evans [2019] FCWA 63
Finton and Kimble [2020] FCWA 7
Keehan v Keehan (2019) 60 Fam LR 276
Marsden & Winch [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Rice and Asplund (1979) FLC 90-725
SCVG & KLD (2014) FLC 93-582
Searson & Searson (2017) FLC 93-788
SPS and PLS (2008) FLC 93-363

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 Darcy & Evans has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1On 14 November 2019 [Ms Darcy] (“the wife”) filed an initiating application seeking the discharge of all previous parenting orders made in relation to [the child] born in 2010, final orders granting her sole parental responsibility, “full custody”, and providing for any time the child is to spend with [Mr Evans] (“the husband”) to be “conducted under the direct supervision of a government approved agency/supervisor”.
2By his response filed on 30 January 2020, the husband sought the dismissal of that application on the basis that there has been “no material change in circumstances since the making of final orders on 29 November 2018”.
3The wife filed an amended application on 6 February 2020, seeking additional orders as outlined later in these reasons. The husband’s amended response filed 7 April 2020 maintained his position that the application should be dismissed short of trial.
4The issue of whether the wife’s application should be so dismissed was argued on 17 March 2021,…

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 DARCY and EVANS

Details

AGLC: DARCY and EVANS [2021] FCWA 81
Case: [2021] FCWA 81
Decision Date

CaseChat Overview and Summary

The wife, [Ms Darcy], commenced proceedings seeking to set aside the parenting orders made in relation to her child, [the child], following a final trial in November 2018. The husband, [Mr Evans], opposed the application and sought dismissal of the application short of trial on the basis that there had been no material change in circumstances since the final orders were made. The wife's application was heard on 17 March 2021. The wife sought to revisit the issues decided by the court at the final trial in November 2018, including the level of supervision required when the child spent time with the husband, and the wife's concerns that the child was at risk of harm by the husband. The court dismissed the wife's application other than to permit the issue of the child changing schools to continue to be determined on its merits. The court found that the evidence presented by the wife did not establish a sufficient change of circumstances to justify revisiting the orders made at the final trial. The court concluded that there was no proper basis for orders to be made in relation to the wife's concerns about the child's safety in the husband's care, or for the orders regulating the child's participation in various physical activities to be revisited. The court did find, however, that the discrete issue of whether the child should change schools was properly before it and should be permitted to continue to be determined on its merits.

Orders