ELLERY and ORMONDE - [2015] FCWAM 166

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: ELLERY and ORMONDE [2015] FCWAM 166

CORAM: KAESER M

HEARD: 6 JULY 2015

DELIVERED : 4 AUGUST 2015

FILE NO/S: PTW 4465 of 2013

BETWEEN: MR ELLERY
Applicant
AND
MS ORMONDE
Respondent

Catchwords:

Child related proceedings; interim orders; risk issues raised regarding mother’s care of the children; insufficient evidence to warrant change to existing orders.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms N Croft
Respondent: Mr W Meredith

Solicitors:

Applicant: Carr & Co
Respondent: William Llewellyn Meredith

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

Cox v Pedrana [2013] FamCAFC 48
Goode & Goode (2006) FLC 93-286
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) FLC 93-424

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

Background

1This matter was previously before me in a Bunbury circuit for a conciliation conference on 28 May 2015. Given the parties intended to raise issues and file and serve documents requiring a hearing, the matter was adjourned to a hearing before me in Perth on 6 July 2015. The hearing proceeded on that date and I reserved my judgment to be delivered on 4 August 2015.
Background of the parties
2The father works on a two week on/two week off then two week on/four weeks off FIFO roster. The parties started living together in 2008. They have two children, [Child A] born [in] 2009 and [Child B] born [in] 2012.
3They separated on 20 January 2012. The children initially lived with the mother. The father removed the children from the mother’s care on 28 July 2013, given his concerns that they were being subjected to child abuse and family violence in her care.
4The previous orders made on 4 August 2014 provide for the children to spend time with the mother each Monday from 9.00 am to Tuesday 3.00 pm and six hours on one other day during the week. Further orders were made in November 2014 which allowed the children to spend time with the mother when the father was at work. The children therefore have been spending extended periods in the mother’s care when the father was working away for two weeks at a time.
5Since November 2014, the children have enjoyed a shared‑care regime where they live with the father when he is not at work and with the mother when he is at work.
6The Court is required to determine the interim application and response of the parties. The father filed a Form 2 application on 27 May 2015 and in that application sought the following orders on an interim basis:
Parental responsibility
1.The applicant father have sole parental responsibility for the children, namely, [Child A] born [in] 2009 and [Child B] born [in] 2012 (“the children”).

Suspension of previous orders
2.Paragraphs 1 and 3 of the minute of consent orders pronounced on 3…

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 ELLERY and ORMONDE

Details

AGLC: ELLERY and ORMONDE [2015] FCWAM 166
Case: [2015] FCWAM 166
Decision Date: 4 AUGUST 2015

CaseChat Overview and Summary

The matter before the Family Court involved Ellery and Ormonde, who were parents of two children. The dispute centred around the care and welfare of their children, with Ormonde seeking interim orders to change the existing care arrangements due to concerns about the mother's capacity to care for the children. The court was tasked with determining whether the evidence presented was sufficient to warrant a change to the existing care orders. The key legal issues revolved around the standard of proof required to alter the existing care arrangements and the weight to be given to the evidence presented.

The court considered the evidence provided and concluded that while there were concerns regarding the mother's care of the children, the evidence did not reach the threshold necessary to justify a change in the existing orders. The court emphasised the importance of a high standard of proof when altering care arrangements, particularly in the interim. The evidence, while indicating some risk issues, did not convincingly demonstrate that the children were at significant risk if they remained with their mother. The court also noted that the children had a strong bond with their mother and that disrupting their living situation could cause additional harm.

In light of the evidence and the considerations outlined, the court decided not to alter the existing care orders. The court recognised the importance of stability and continuity in the lives of the children, and determined that the risks identified, while concerning, did not warrant a change to the existing arrangements at that time. The court ordered that the children remain in the care of their mother, subject to ongoing supervision and support services to address the identified risk issues.

Orders