EVANS and DRAKE - [2021] FCWA 15

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: EVANS and DRAKE [2021] FCWA 15
CORAM: TYSON J
HEARD: 29, 30 and 31 MAY 2018, 1 JUNE 2018, 23, 24, 25, 26 and 27 NOVEMBER 2020
DELIVERED : 10 FEBRUARY 2021
FILE NO/S: PTW 965 of 2016
BETWEEN: MS EVANS
Applicant
AND
MR DRAKE
Respondent

Catchwords:

Family Law – Child related proceedings – Where there is one child, aged 6 years – Where the respondent is not the biological father of the child, but was led to believe he was – Where the child lives with the mother and presently spends supervised time with the respondent – Where the respondent seeks for the child to immediately live with him, and ultimately live in a shared care arrangement – Where the applicant seeks no orders for any time between the child and the respondent, but if the court considers time is in the child’s best interest, for the time to be supervised – Where there is high conflict between the parties – Where the respondent’s ongoing allegations and criticisms of the applicant, coupled with the litigation, impact on her mental health – Where the parties have no capacity to communicate and co-operatively parent – Where an Independent Children’s Lawyer and Single Expert Witness have been appointed – Where consideration is given to the impact on the applicant, if the child continues to spend time with the respondent – Best interests – Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Kearney
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Ms Korzeniecka

Solicitors:

Applicant	:	Rattigan Kearney & Bochat
Respondent	:	Self-Represented Litigant
Independent Children's Lawyer	:	Platinum Legal

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

DL & W (2012) FLC 93-496
Donnell & Dovey (2010) FLC 93-428
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Yamada & Cain [2013] FamCAFC 64

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 Evans & Drake has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1 These proceedings concern [the Child], who is seven years old. The Applicant, [Ms Evans] and the Respondent, [Mr Drake], were in a short relationship, which ended in 2010. Despite their separation, Mr Drake and Ms Evans continued to live together until either June or July 2015, according to Mr Drake, or September 2015, according to Ms Evans.

2 Ms Evans gave birth to the Child [in] 2013. Mr Drake believed he was the Child’s father and Ms Evans supported that belief. [In] April 2016, paternity test results excluded Mr Drake as the Child’s biological father. Mr Drake is the only father the Child has ever known. The Child believed Mr Drake was…

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 EVANS and DRAKE

Details

AGLC: EVANS and DRAKE [2021] FCWA 15
Case: [2021] FCWA 15
Decision Date: 10 FEBRUARY 2021

CaseChat Overview and Summary

In this family law matter, Evans sought orders concerning the care of their six-year-old child, while Drake, who believed he was the biological father, sought to have the child live with him. The child currently spends supervised time with Drake and lives with Evans. Drake's application to immediately live with the child and establish a shared care arrangement was countered by Evans' request for no time between Drake and the child, with the exception that if the court deemed it in the child's best interest, the time should be supervised. The proceedings were marked by significant conflict between the parties, with Drake's allegations and criticisms impacting Evans' mental health. Both parties were unable to communicate or co-parent cooperatively. The court had to consider the implications of continuing supervised time between Drake and the child, along with the recommendations of an Independent Children's Lawyer and a Single Expert Witness.

The legal issues centred on determining the child's best interests, particularly in light of the unique circumstances of the case, including the high conflict between the parents, the impact of litigation on Evans' mental health, and the lack of co-parenting capacity. The court had to weigh the benefits of the child spending time with Drake against the potential negative impacts, particularly in the context of the ongoing conflict and allegations. The court also considered the child's age and the need for stability and security in their life.

The court concluded that the child's best interests were served by not increasing the time the child spends with Drake, and that the existing supervised arrangements should remain in place. The court found that the ongoing conflict and allegations were detrimental to both the child and Evans, and that any increase in time with Drake could exacerbate these issues. The court noted the importance of stability and the potential harm of continued conflict, ultimately deciding that maintaining the current supervised arrangements was in the child's best interests. The court emphasised that each case turns on its own unique facts, and this decision was made based on the specific circumstances presented.

The court ordered that the child continue to live with Evans and that the supervised time with Drake remain unchanged. The court further directed that the parties engage in mediation to attempt to improve their communication and co-parenting capacity, highlighting the importance of such efforts for the child's well-being. The court's decision underscored the paramount importance of the child's best interests in family law disputes, particularly in cases involving high conflict and allegations of abuse.

Orders