EISNER and CANDACE - [2019] FCWA 134

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: EISNER and CANDACE [2019] FCWA 134
CORAM: O'BRIEN J
HEARD: 17 & 18 APRIL 2019
DELIVERED : 14 JUNE 2019
FILE NO/S: PTW 7172 of 2015
BETWEEN: MR EISNER
Applicant
AND
MS CANDACE
Respondent

Catchwords:

PARENTING– Where parties separated when child very young – Where child has been in primary care of the wife since separation, spending progressively increasing time with the husband – Where the wife wishes to move with the child to [Region A]– Where the husband opposes the proposed move and seeks orders to progress to an equal time arrangement – Turns on own facts.

PRACTICE AND PROCEDURE– Importance of personal conferral to the proper conduct of proceedings – Duties of lawyers to adduce only evidence which is relevant and of probative value – Principles for the conduct of child related proceedings

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms Anderson
Respondent	:	Mr Jones

Solicitors:

Applicant	:	Cobalt Legal
Respondent	:	HBR Family Lawyers

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

A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd (2009) 25 VR 189
Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 259 CLR 662
Real Estate and Business Agents Supervisory Board v Espanol Holdins & Ortin (in liq) & Anor [2007] WASCA 67
Virgtel Ltd v Zabusky (No.2) [2009] QCA 349

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

1[Mr Eisner] (“the husband”) and [Ms Candace] (“the wife”) have been unable to agree the parenting arrangements to be made for their daughter, [K], born [in] 2013.
2Both parties presently live in Perth. Central to their dispute is the wife’s desire to move with K to live in [Region A].

Background

3The husband is a [statistician] who was born in 1973. The wife is a [yoga instructor] who was born in 1980. The parties began living together in March 2008, and were married in 2011. They separated in January 2015, and were divorced in April 2016.
4K has lived primarily with the wife, and spent time with the husband, since the parties separated.
5The parties have both re-partnered. The husband lives with his new partner [Ms B]. Their child together, a daughter, was born shortly prior to the trial. The wife is in a committed relationship with [Mr D], who lives in Region A and owns a home there.
6Proceedings were commenced by the husband filing an application [in] December 2015, in which he sought equal shared parental responsibility for K, and that she live with each parent for seven nights per fortnight, with multiple handovers. He also sought orders in relation to school holidays, communication, special occasions and other specific issues.
7The wife filed a response on 19 January 2016. She too proposed that the parties have equal shared parental responsibility, but otherwise proposed that K live primarily…

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.

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Details

Case: [2019] FCWA 134
Decision Date: 14 JUNE 2019

CaseChat Overview and Summary

The case involved the parents of a child, Eisner and Candace, who separated when their child was very young. Since the separation, the child has been primarily cared for by Candace, with the father, Eisner, spending progressively more time with the child. Candace wishes to move with the child to [Region A], a proposal which Eisner opposes. He seeks orders to transition to an equal time arrangement. The case was heard in the Family Court of Australia.

The legal issues before the court included the appropriate parenting arrangement for the child, considering the significant time the child has spent with Candace since the separation, and the importance of maintaining stability and continuity in the child's life. The court also considered the principle that the best interests of the child should be the paramount consideration in determining parenting arrangements. Additionally, the court examined the relevance and probative value of evidence presented by both parties, the importance of personal conferral in the proper conduct of proceedings, and the duties of lawyers in child-related proceedings.

The court found that while the child had spent the majority of time with Candace since the separation, the increasing time spent with Eisner indicated that an equal time arrangement could be in the child's best interests. The court emphasised the importance of personal conferral between the parties and their lawyers to ensure the proper conduct of proceedings. It also highlighted the need for lawyers to adduce only evidence that is relevant and of probative value. The court ultimately decided that an equal time arrangement would be in the child's best interests, and it made the appropriate orders to this effect.

The court made orders that the child would reside with both parents on an equal time basis, with specific arrangements for holidays and special occasions. The court also ordered that the parents engage in regular personal conferrals to ensure the smooth transition to the new arrangement and to address any future issues that may arise.

Orders