FELTHAM and FELTHAM - [2014] FCWA 84

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: FELTHAM and FELTHAM [2014] FCWA 84

CORAM: WALTERS J

HEARD: 19, 21, 24, 25, 26, 27, 28 MARCH & 13, 14, 18, 19, 20 & 21 AUGUST 2014

DELIVERED : 16 DECEMBER 2014

FILE NO/S: PTW 4004 of 2010

BETWEEN: MRS FELTHAM
Applicant
AND
MR FELTHAM
Respondent

Catchwords:

FAMILY LAW – PARENTING ISSUES – Whether children should live with mother or father – Where parties had implemented a shared care arrangement – Where father commenced home schooling children – Where father highly critical of mother – Where Court makes interim orders placing children in the full-time care of father as a consequence of allegations which are later found to be unsubstantiated or exaggerated – Where older children align with father while in his care and express negative views of mother – Where older children present as aggressive and disdainful towards mother – Where older children assert that mother does not love them – Where single expert has serious concerns regarding father's temperament, honesty and motivation – Where Court subsequently reverses previous interim orders and places children in the full-time care of mother – Where orders made for children to attend mainstream schools – Where father presented as opinionated and controlling – Finding that father demonised mother and turned children against her – Finding that father encouraged children, whether directly or indirectly, to dislike mother, to treat her with disrespect and to reject her as a person and as a parent – Where father's attitudes have impacted adversely on the children – Where mother clearly capable of providing for children's needs, including emotional and intellectual needs – Where father not currently capable of providing for children's emotional needs – Consideration of Family Law Act 1975 s 60CC factors – Conclusion that it is in children's best interests to live with mother and for mother to have sole parental responsibility

Legislation:

Family Law Act 1975 (Cth), Pt VII, s 60B, s 60CA, s 60CC, s 61D, s 61DA, s 64B, s 65DAA, s 65DAC, s 60DAE
s 4(1)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Mr L Kristopher
Independent Children's Lawyer : Mr L Young

Solicitors:

Applicant:
Respondent: Lumlan & Associates
Independent Children's Lawyer : Legal Aid WA

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

Champness & Hanson (2009) FamCAFC 96
Collu & Rinaldo [2010] FamCAFC 53
Cox & Pedrana (2013) FLC 93-537
Goode & Goode (2006) FLC 93-286
Hungerford & Tank [2007] FamCA 637
In Oscar and Traynor (2008) FamCA 95
Jets & Maker (No 2) [2011] FMCAfam 1473
M & S (2007) FLC 93-313
Marsden & Winch (No 3) [2007] FamCA 1364
Mazorski & Albright (2008) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
McGregor & McGregor (2012) FLC 93-507
McLay & McLay (1996) FLC 92-667
Mills & Watson (2008) 39 Fam LR 52
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Re F – Litigants…

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 FELTHAM and FELTHAM

Details

AGLC: FELTHAM and FELTHAM [2014] FCWA 84
Case: [2014] FCWA 84
Decision Date: 16 DECEMBER 2014

CaseChat Overview and Summary

The case of Feltham and Feltham involved a dispute between the parents of three children regarding the best living arrangements for the children. The father and mother had initially implemented a shared care arrangement, but the father began home schooling the children and became highly critical of the mother. The Federal Circuit and Family Court of Australia was tasked with determining the most appropriate living arrangements for the children.

The primary legal issue the court had to address was whether the children should live with their mother or father, given the father's actions and the impact on the children. The court also had to consider the allegations made by the father against the mother and the impact of these allegations on the children's relationship with their mother. Furthermore, the court needed to assess the father's ability to provide for the children's emotional needs and the mother's capacity to meet those needs.

In its reasoning, the court found that the father had demonstrated a pattern of behaviour that had demonised the mother and turned the children against her. The court was particularly concerned with the father's role in encouraging the children to dislike and disrespect their mother, as well as his opinionated and controlling nature. The court noted that the older children had aligned with their father during the interim period when he had full-time care, and they had presented as aggressive and disdainful towards their mother. The court also considered the single expert's concerns regarding the father's temperament, honesty, and motivation. Ultimately, the court found that the father was not currently capable of providing for the children's emotional needs, while the mother was clearly capable of doing so.

Consequently, the court reversed the previous interim orders that had placed the children in the full-time care of the father and instead ordered that the children live with their mother full-time. The court also mandated that the children attend mainstream schools. These orders were made to ensure the children's best interests were met, taking into account the adverse impact of the father's behaviour on the children and the mother's ability to provide for their needs.

Orders