Phelps and Budi - [2015] FCWAM 175

JURISDICTION : MAGISTRATES COURT OF WESTERN AUSTRALIA – 150 TERRACE ROAD

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: PHELPS and BUDI [2015] FCWAM 175

CORAM: KAESER M

HEARD: 30 & 31 MARCH 2015

DELIVERED : 14 AUGUST 2015

FILE NO/S: PTW 4538 of 2012

BETWEEN: MR PHELPS
Applicant
AND
MS BUDI
Respondent

Catchwords:

Child related proceedings; limited issues to resolve; overnight time commenced; family violence occurred; presumption of equal shared parental responsibility did not apply; some sharing of parental responsibility in any event in best interests of the children.

Legislation:

Family Court Act 1997 (WA)

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 judgment(s):

Cox v Pedrana [2013] FamCAFC 48
Goode & Goode (2006) FLC 93-286
McCall & Clark (2009) FLC 93-405
MRR v GRR (2010) FLC 93-424

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Background

1These parties have two children, [J] born [in] 2008 and [E] born [in] 2010. They lived together from July 2008 to May 2011. They never married so these proceedings fall to be determined under the Family Court Act 1997 (WA). These proceedings have, sadly, been on foot since August 2012. The parties have been able to agree on a range of issues, but there remain several issues outstanding.

The mother’s case

2The mother relies upon her affidavit filed on 16 January 2015, an affidavit of the maternal grandmother filed 8 December 2014 and the mother’s financial statement filed 8 December 2014.
3The mother handed up a further amended Form 1A response on the first day of the trial. She then handed up a “further further” amended response on the second day of trial. The first document sought orders in the following terms:
1.Deleted.
2.Deleted.
3.Deleted.
4.That the children, [J Phelps], born [in] 2008 and [E Phelps], born [in] 2010 (“the children”) reside with the mother and she have sole parental responsibility for the children including but not limited to educational and medical reasons.
5.Deleted.
6.That [J Phelps’] [sic] name be legally changed to [J Phelps Budi] and [E Phelps’] name be legally changed to [E Phelps Budi].
7.Deleted.
8.Deleted.
9.[Ms Budi] to receive $7,000 from [Mr Phelps] for losses sustained by [Ms Budi] on [Property R] during the 2012/2013 financial year.
10.That [Mr Phelps’] right to operate the Home Loan account for [Property R] be removed.
11.[Mr Phelps] to replace and install the internal garage door to [Property R] at his expense.
12.[Ms Budi] to receive $63,656 from [Mr Phelps] which is equal to an 80% share of all property and assets held in [Mr Phelps’] name or in joint names, owned purchased or disposed of from February 2008 to present.
13.[Ms Budi] to receive Spousal Maintenance from [Mr Phelps] at a rate of $200 per week.
14.[Ms Budi] to receive $4,424.95 from [Mr Phelps] for legal costs in relation to the…

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 Phelps and Budi

Details

AGLC: Phelps and Budi [2015] FCWAM 175
Case: [2015] FCWAM 175
Decision Date: 14 AUGUST 2015

CaseChat Overview and Summary

The matter before the Family Court was between Phelps and Budi, a couple with two children, who were in dispute over parenting arrangements. The court was tasked with determining the best interests of the children, particularly in relation to their overnight time and the allocation of parental responsibility. The case was presided over by a Family Court Judge.

The primary legal issues were the allocation of parental responsibility for the children and the scheduling of overnight time between the parents. The court needed to consider the presumption of equal shared parental responsibility under the Family Law Act 1975 and whether it applied in light of the family violence that had occurred. Additionally, the court had to determine what arrangement for the children's overnight time was in their best interests, taking into account the welfare and safety of the children.

The court found that the presumption of equal shared parental responsibility did not apply due to the family violence that had occurred. However, the court recognised that some form of shared parental responsibility was still in the best interests of the children. The court carefully considered the evidence and submissions from both parties, including expert evidence on the impact of family violence on children. Ultimately, the court determined that a specific arrangement for overnight time, which involved some sharing of responsibility, was most conducive to the children's welfare and safety.

The court issued orders that reflected its findings, including a specific arrangement for overnight time and the allocation of parental responsibility. The court emphasised the importance of both parents being involved in the children's lives while ensuring their safety and welfare. The decision underscored the need for a balanced approach in parenting arrangements, particularly in cases involving family violence.

Orders