E and S - [2010] FCWA 3

[2010] FCWA 3

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY COURT ACT 1997
LOCATION	:	PERTH
CITATION	:	E and S [2010] FCWA 3
CORAM	:	THACKRAY CJ
HEARD	:	18, 19 AUGUST 2009
DELIVERED	:	6 JANUARY 2010
FILE NO/S	:	PTW 4980 of 2007

BETWEEN

: E

Applicant/Mother
AND
S
Respondent/Father

Catchwords:

CHILDREN - Equal shared parental responsibility - Substantial and significant time - With whom a child lives - Best interests of a child - Interim orders made

Legislation:

Family Court Act 1997

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr S Jones
Respondent	:	Mr D Childs

[2010] FCWA 3

Solicitors:

Applicant	:	DCH Legal Group
Respondent	:	Gibson & Gibson

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

B and B

Family Law Reform Act 1995 (1997) FLC 92-755

CDJ & VAJ (1998) 197 CLR 172
Champness & Hanson (2009) FLC 93-407
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450
G & C [2006] FamCA 994
Goode and Goode (2006) FLC 93-286
Marsden & Winch (No. 3) [2007] FamCA 1364
Mazorski v Albright (2007) 37 Fam LR 518
Mulvany & Lane (2009) FLC 93-404

[2010] FCWA 3

1 [Ms E] and [Mr S] are unable to agree how much time their six year old
daughter [Tanya] should spend with each of them. Tanya’s father proposes an equal shared care arrangement, whereas Tanya’s mother has serious concerns that even the current five nights a fortnight with the father is too much for Tanya.

Orders sought

2 The orders sought by the mother were contained in her Papers for the Judge.
She proposed that Tanya primarily live with her and spend time with the father on a two week rotation as follows:

• in the first week from 3.30 pm on Wednesday until 3.30 pm on Thursday;
• in the second week from 3.30 pm on Thursday until 8.30 am on Monday.
3 The mother also proposed an equal sharing of school holidays, with the
Christmas holidays being taken on a week-about basis. In her oral evidence the mother said one week was too long for Tanya to spend away from either parent during holidays and suggested that Tanya should be away for no longer than three or four days.
4 The mother sought a variety of other orders concerning Tanya, almost all of

which were agreed. Amongst these was an order that all handovers which take place
on a school day should occur at Tanya’s school.
5 The orders sought by the father were set out in a Minute filed in March 2009. The main point of difference from the mother’s proposals was his request for a week-about shared care arrangement. He also proposed that the time spent by each parent with Tanya during the Christmas school holidays be taken in one block period.
6 The father also sought an order that Tanya not be left unsupervised with the
maternal grandfather. He proposed that both parties be required to undergo random drug testing. He also…

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 E and S

Details

AGLC: E and S [2010] FCWA 3
Case: [2010] FCWA 3
Decision Date: 6 JANUARY 2010

CaseChat Overview and Summary

The applicants, E and S, were parents of two minor children. They sought an order for equal shared parental responsibility and a change in the arrangement whereby the children primarily resided with the mother. The matter was heard in the Family Court of Australia. The primary concern of the court was to determine what was in the best interests of the children.

The legal issues at hand were whether the children should be placed in a position of equal shared parental responsibility, and if so, what arrangement would be most suitable. The court had to assess the evidence presented regarding the parenting arrangements and the impact these had on the children's welfare. The applicants argued that the children should have more time with the father, while the mother contended that the current arrangement was in the children's best interests.

The court found that the children had been spending substantial and significant time with the father and that the arrangement did not adequately reflect their needs. The court emphasised the importance of the children having a meaningful relationship with both parents. In the circumstances, the court concluded that it was in the children's best interests to have equal shared parental responsibility. It also ordered that the children's primary residence should be with the father. Interim orders were made to facilitate these changes.

The court ordered that the parties have equal shared parental responsibility for the children. The children's primary residence was to be with the father, with specific arrangements for holidays and special occasions to ensure both parents could maintain a meaningful relationship with the children. The court also ordered that the children spend at least 50% of their time with the father and that contact arrangements be flexible to accommodate the children's needs.

Orders