FRANKLIN and FRANKLIN - [2022] FCWA 24

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: FRANKLIN and FRANKLIN [2022] FCWA 24
CORAM: DUNCANSON J
HEARD: 31 JANUARY 2022
DELIVERED : 3 FEBRUARY 2022
FILE NO/S: [Redacted]
BETWEEN: MS FRANKLIN
Applicant
AND
MR FRANKLIN
Respondent

Catchwords:

CHILDREN - where both parties seek orders changing the child's living arrangements - where it is in the best interests of the child that his living arrangements remain unchanged - expedition refused

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mrs R Oakeley
Respondent	:	Mr H Moser
Independent Children's Lawyer	:	Ms J Brinkley

Solicitors:

Applicant	:	Butlers Lawyers & Notaries
Respondent	:	Carlo Primerano & Associates
Independent Children's Lawyer	:	Legal Aid WA

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

Nil

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

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1[Ms Franklin], the mother and [Mr Franklin], the father are unable to agree about the living arrangements for their son, [Child A] pending trial. Child A is five years of age.
2The parties commenced a relationship in 2015. The parties separated finally in June 2020. Child A was born [in] 2016. The mother has a daughter from a previous relationship, [Child B] aged 14 years.
3On 10 September 2020 orders were made for Child A to be returned to the care of the mother after she applied for a recovery order. It was further ordered that Child A spend time with the father each week from 10.00 am Sunday to 5.00 pm Tuesday.
4The mother deposed that in November 2020 Child A made a statement that he had been sexually abused by his uncle, [Mr A].
5On 30 November 2020 an order was made restraining the father from allowing Child A to have any contact with Mr A.
6The mother deposed that Child A made further disclosures and in April 2021 she informed the father that she would not facilitate time between Child A and him until the report of the single expert witness was produced.
7On 21 May 2021 the Department for Communities provided a memorandum to the Court. The memorandum confirmed the "no action warranted" response provided to the Court on 6 January 2021 in relation to the notice of risk filed by the mother.
8The memorandum stated that on 8 April 2021, the Department received a child protection referral with neglect and sexual abuse concerns for the children. The memorandum noted Child A had…

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 FRANKLIN and FRANKLIN

Details

AGLC: FRANKLIN and FRANKLIN [2022] FCWA 24
Case: [2022] FCWA 24
Decision Date: 3 FEBRUARY 2022

CaseChat Overview and Summary

In this matter, the parents, Franklin and Franklin, contested a change to the living arrangements of their child. The case was brought before the Family Court of Australia. Both parents sought orders to modify the current living arrangements of their child, which had been established through previous court orders. The central issue before the court was to determine whether it was in the best interests of the child for the living arrangements to be altered. The court considered various factors, including the child's age, health, emotional well-being, and the views of the child where appropriate. The court also examined the ability of each parent to provide for the child's needs, the impact of any changes on the child's relationship with both parents, and any other relevant factors.

The court found that, given the current circumstances, it was not in the best interests of the child to change the existing living arrangements. The evidence presented did not demonstrate that a change would significantly benefit the child or align with the child's welfare. The court was satisfied that the current living arrangements provided a stable and supportive environment for the child, which was crucial for their ongoing development and well-being. The court also highlighted the importance of maintaining continuity and stability in the child's life, particularly in the context of ongoing legal disputes between the parents. The application for an expedition was denied, as the court determined that the matter did not warrant urgent consideration outside of the regular court process.

Ultimately, the court upheld the existing living arrangements for the child, recognising the importance of stability and the child's current best interests. The court's decision underscored the principle that changes to a child's living arrangements should only be made when there is a clear and compelling benefit to the child. The parents were directed to continue adhering to the existing orders until further order by the court.

Orders