MANE and ASPLEY - [2019] FCWA 118

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: MANE and ASPLEY [2019] FCWA 118
CORAM: DUNCANSON J
HEARD: 29, 30 October, 1, 2 November 2018, 27, 28, 29 March 2019
DELIVERED : 31 MAY 2019
FILE NO/S: PTW 2344 of 2016
BETWEEN: MR MANE
Applicant
AND
MS ASPLEY
Respondent

Catchwords:

CHILDREN - Where the presumption that it is in the best interests of the child that his parents have equal shared parental responsibility for him does not apply - Where it is nevertheless in the child's best interests to make such an order - Where both parties are competent and caring parents - Where orders are made gradually increasing child's time with the father - Where an order is not made for the child's attendance at private school at this time - Where various other parenting orders are made which are considered to be in the child's bests interests

Legislation:

Evidence Act 1906 (WA) s 50A
Family Court Act 1997 (WA) s 9A, s 66, s 70A
Surveillance Devices Act 1998 (WA) s 5

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms T Farmer
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Lavan Legal
Respondent	:	Self-Represented Litigant

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

AW v Rayney [2010] WASCA 161
Wilkinson and Asher [2018] FCWA 151

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

1[Mr Mane], the father and [Ms Aspley], the mother are unable to agree about the parenting arrangements for their son [B] who is four years of age.

THE PARENTING ORDERS SOUGHT

2The orders sought by the father are set out in an amended Minute of Proposed Final Orders Sought filed 26 March 2019.
3The orders sought by the mother are set out in a Minute of Proposed Orders filed 26 February 2018.
4The matters in dispute include issues which I summarise as follows:
•whether the parties should have equal shared parental responsibility for B as proposed by the father, or whether the mother should have sole parental responsibility as proposed by her;
•whether B should live with both parties, his time with the father increasing at alternate weekends and mid-week until the commencement of pre-primary in 2020, when the father proposes that B live with him in a two week cycle, in week one – overnight on Tuesday and from Friday to Monday, and in week two – from Tuesday to Friday, a total of seven nights each fortnight. Alternatively whether B should live with the mother and spend time with the father gradually increasing such that when he commences school in early 2020, he spends time with the father from Friday to Sunday in week one and from Thursday to Friday…

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 MANE and ASPLEY

Details

AGLC: Mane and Aspley [2019] FCWA 118
Case: [2019] FCWA 118
Decision Date: 31 MAY 2019

CaseChat Overview and Summary

The matter before the Family Court of Australia involved a dispute between the parents, Mane and Aspley, regarding the future parenting arrangements for their child. The parents, both deemed to be competent and caring, were unable to reach an agreement on the best course of action for their child's welfare. The court was tasked with determining the most suitable parenting orders, considering the child's best interests, while also addressing the presumption that equal shared parental responsibility is generally in a child's best interests.

The primary legal issues the court had to decide were whether the presumption of equal shared parental responsibility should apply, and if not, what alternative arrangements would be in the child's best interests. The court also had to consider the parents' respective roles and the potential impact of the child attending a private school, as well as the overall welfare of the child. Furthermore, the court was required to assess the implications of gradually increasing the child's time with the father and making other parenting orders.

In delivering its decision, the court first acknowledged that the presumption of equal shared parental responsibility did not apply in this case. Despite this, the court found that it was in the child's best interests to make an order for equal shared parental responsibility. The court then considered the parents' roles and decided to make orders that would gradually increase the child's time with the father. The court also determined that an order for the child's attendance at a private school was not in the child's best interests at that time. Finally, the court made various other parenting orders, which it considered to be in the child's best interests.

The court ordered that the child's time with the father would gradually increase, and that there would be no order for the child's attendance at a private school at that time. The court also made various other parenting orders, which it considered to be in the child's best interests. These orders included specific arrangements for communication between the parents, decision-making responsibilities, and the child's schooling and extracurricular activities.

Orders