FINTON and KIMBLE - [2020] FCWA 7

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: FINTON and KIMBLE [2020] FCWA 7
CORAM: SUTHERLAND CJ
HEARD: 28 OCTOBER 2019
DELIVERED : 10 JANUARY 2020
FILE NO/S: PTW 2493 of 2014
BETWEEN: MR FINTON
Applicant
AND
MS KIMBLE
Respondent

Catchwords:

CHILDREN - Application to spend time with children - Rice and Asplund - Change of circumstance not established - Application dismissed.

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Self Represented Litigant

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

Carriel & Lendrum (2015) FLC 93-640
Finton & Kimble [2017] FCWA 106
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Marsden v Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Pelerman v Pelerman (2000) FLC 93-037
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
SPS and PLS (2008) FLC 93-363

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 Finton & Kimble has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Introduction

1The respondent mother seeks that the applicant father’s most recent application for parenting orders in relation to their two young daughters be dismissed without the need to proceed to a final hearing.

Background facts

2The parties formed a relationship in 2009 and were married [in] 2011. Their first child was born in 2012, followed by their second child in 2013. The parties separated in December 2013. At the date of separation, the oldest child was only 14 months old and the youngest child was only three months old. After separation the children remained in the mother’s primary care and had limited opportunities to develop any relationship with the father.
3The father commenced parenting proceedings in May 2014. In June 2014 the court made orders for the father to spend very limited supervised time with the children. An independent children’s lawyer ("ICL") and a single expert witness were appointed in the case.
4The matter proceeded to a defended trial over seven days in June 2016. In short, the orders sought by the father at trial were that the parties have equal shared parental responsibility for the children, the children live with the mother and spend defined regular time with the father. On the other hand, the mother and the ICL both sought orders that the mother have sole parental responsibility for the children, they live with the mother and have no time with the father. The trial judge published his reasons for decision and made final orders on 24 August 2017.

2017 reasons for decision

5The salient findings in the reasons for decision[1] were as follows:
[1] Finton & Kimble [2017] FCWA 106.
6The…

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 FINTON and KIMBLE

Details

AGLC: FINTON and KIMBLE [2020] FCWA 7
Case: [2020] FCWA 7
Decision Date: 10 JANUARY 2020

CaseChat Overview and Summary

In the case of Finton and Kimble, the primary issue before the court was an application brought by the father, seeking an alteration to the existing parenting arrangements to allow him more time with his two children. The mother, Kimble, opposed the application, asserting that the current arrangements adequately met the children's needs. The matter was heard in the Family Court of Australia, where the presiding judge was tasked with evaluating the circumstances and determining whether a change in the parenting arrangements was warranted.

The legal issues that the court needed to address included whether there had been a significant change in circumstances since the last parenting order was made, as required under section 60CO(2)(a) of the Family Law Act, and whether such a change warranted an alteration in the time the children spend with their father. The court considered the evidence presented by both parties, including expert reports and the children's expressed wishes, alongside the principles set out in Rice v Rice and Asplund v Asplund. The father's application was ultimately assessed against these legal standards to determine if the burden of proof had been met.

After thoroughly reviewing the evidence and applying the relevant legal principles, the court found that the father had not demonstrated a significant change in circumstances since the last parenting order. The judge concluded that the existing arrangements continued to meet the children's needs, and there was no compelling reason to alter the current time-sharing arrangements. Consequently, the court dismissed the father's application, reaffirming the existing parenting orders that allocated specific periods for the children to spend time with their father.

Orders