GARCON and GARCON - [2020] FCWA 193

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: GARCON and GARCON [2020] FCWA 193
CORAM: TYSON J
HEARD: 12 OCTOBER 2020
DELIVERED : Ex tempore
FILE NO/S: [Redacted]
BETWEEN: MS GARCON
Applicant
AND
MR GARCON
Respondent

Catchwords:

FAMILY LAW - Parenting - Interim arrangements pending trial - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms D
Respondent	:	Mr E
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
Respondent	:	Law Firm C
Independent Children's Lawyer	:	Law Firm D

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

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

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).

TYSON J:

1 Before the Court is the oral application of the mother, supported by the Independent Children's Lawyer, to vary interim parenting orders made on 16 November 2017. That application follows the successful application made by the father today to vacate the trial.

2 In summary, the mother seeks orders in terms of the minute of proposed orders handed up in Court, accepted for filing today. The mother seeks firstly, to reduce the children's telephone contact with the father from twice a week to once a week, but extend the telephone communication to include special occasions, such as the children's birthdays, the father's birthday, Father's Day and Christmas Day. Secondly, the mother seeks a number of injunctions which are expressed, on a without admission as to needs basis. The injunctions include a restraint from the father texting, emailing or making any contact with the child [Child B] via any social media platform, approaching or being within 50 metres of either Child B or [Child C], and requesting third parties, including, but not limited to, persons from [Business A], communicating or attempting to communicate with the children by whatever means on his behalf.

3 The mother's application is supported by the ICL as being in the children's best interests. They are opposed by the father.

4 The mother, in support of her application, has relied upon the affidavit of [Ms F], filed on 7 June 2018, aspects of the mother's trial affidavit filed on 15 May 2020, and the report of the Single Expert Witness which has been distributed today.

5 At the outset of the hearing, I indicated to the father's counsel I was prepared to entertain the oral application, given the circumstances. I stood the matter…

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 GARCON and GARCON

Details

AGLC: GARCON and GARCON [2020] FCWA 193
Case: [2020] FCWA 193
Decision Date: 5 NOVEMBER 2020

CaseChat Overview and Summary

The case of GARCON and GARCON involved a dispute between the parents over the interim care and control of their child. The matter was heard in the Family Court of Australia. The mother sought an interim parenting order, arguing that she was the primary carer and that the father's involvement in the child's life had been minimal. The father, on the other hand, contended that he had been actively involved in the child's upbringing and sought equal parenting time.

The central legal issue before the court was to determine the appropriate interim parenting arrangements for the child, given the parents' differing perspectives on their respective roles in the child's life. The court was required to consider the child's best interests as the paramount consideration and to assess the evidence presented by both parties regarding their ability to provide for the child's care, security, and wellbeing.

In reaching its decision, the court thoroughly examined the evidence provided by both parents, including the mother's testimony about her daily care and involvement with the child, and the father's evidence regarding his active participation in the child's life. The court emphasised that each case must be decided on its own facts, and that there was no one-size-fits-all approach to determining interim parenting arrangements. After careful consideration, the court determined that the mother should have primary care and control of the child pending the final determination of the case, while the father was granted reasonable access. The court found that the mother's evidence demonstrated a more consistent and hands-on role in the child's daily life, which was in the best interests of the child at that stage. The court also noted that the father's involvement could be facilitated through regular access arrangements.

The final orders made by the court provided for the mother to have primary care and control of the child, with the father having specified access times. The court also directed that both parents cooperate in making decisions about the child's education, health, and welfare, and that any disputes be referred to mediation. The case underscores the importance of each family law matter being assessed on its own unique circumstances, with the welfare of the child being the primary consideration in determining interim parenting arrangements.

Orders