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RICHES and LEHANE

RICHES and LEHANE

Case [2023] FCWA 90 3 May 2023

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: RICHES and LEHANE [2023] FCWA 90
CORAM: COHEN J
HEARD: 27, 28 FEBRUARY 2023 AND 1, 2, 3, 7, 8 AND 23 MARCH 2023
DELIVERED : 3 MAY 2023
FILE NO/S: 3469 of 2016
BETWEEN: ILENE RICHES
Applicant
AND
OLIVIA LEHANE
Respondent

Catchwords:

PARENTING – Reunification with parent – proceedings between mother and paternal aunt – where long history of significant trauma and family violence – where mother highly vulnerable to manipulation and exploitation – where child protection and police have been involved with the family – where paternal aunt instituted proceedings to take steps to protect child from risk of harm with mother – where child has been living with paternal aunt since proceedings commenced – where mother has not spent unsupervised time with the child since proceedings commenced – where paternal aunt seeks to limit mother's time with child to daytime contact only – where mother seeks either gradual or intensive reunification with child – where mother has since remarried, has found stability, but naivety presents risk of harm to the child – where paternal aunt has veneer of supporting relationship with mother but takes steps to undermine the relationship – balancing of risk of physical harm alleged by paternal aunt against risk of psychological and emotional harm – where court satisfied gradual reunification appropriate

Legislation:

Convention on the Rights of the Child (1989)
Criminal Code (Cth)
Criminal Code (WA)
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Ms M. Hearty
Respondent	:	Mrs R. Oakeley
Independent Children's Lawyer	:	Mr C. Scott

Solicitors:

Applicant	:	Hearty & Tam Family Lawyers
Respondent	:	Western Legal
Independent Children's Lawyer	:	Baily Family Law

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

B and B [Suspension of access] (1988) FLC 91-957
B and B [Suspension of access] (1988) FLC 91-978
Bielen & Kozma (2022) FLC 94-123
Bondelmonte v Bondelmonte (2017) 259 CLR 662
Bones v Riddle [2021] FCWA 60
Briginshaw v Briginshaw (1938) 60 CLR 336
DL & W (2012) FLC 93-496
Fox v Percy (2003) 214 CLR 118
Goode and Goode (2006) FLC 93-286
H and K [2001] FamCA 687
Johnson and Page (2007) FLC 93-344
Jones v Dunkel (1959) 101 CLR 298
M and M (1988) FLC 91-958
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
Mellick and Mellick [2014] FamCAFC 236
Moose & Moose (2008) FLC 93-375
MRR v GR (2010) 240 CLR 461
Mulvany & Lane (2009) FLC 93-404
Potts & Bims and Ors [2007] FamCA 394
Riches and Lehane [2023] FCWA 17
Sedgley and Sedgley (1995) FLC 92-623
Slater v Light (2013) 48 FamLR 573
Souter & Meagher & Anor [2007] FamCA 18
Starr & Duggan [2009] FamCAFC 115
Stott & Holgar and Anor [2017] FamCAFC 152
Taylor and Barker (2007) FLC 93-345
U v U (2002) 211 CLR 238
Vismay & Shaw [2014] FamCAFC 124
Worrall and Bartley [2023]…

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.

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Details

AGLC: RICHES and LEHANE [2023] FCWA 90
Case: [2023] FCWA 90
Decision Date: 3 MAY 2023

CaseChat Overview and Summary

In the Family Court of Australia, the case of Riches and Lehane involved a dispute between a mother and the child's paternal aunt regarding the child's care and parenting arrangements. The child had been living with the paternal aunt since the aunt instituted proceedings to prevent the child from being exposed to alleged risks of harm by the mother. The mother sought either gradual or intensive reunification with her child, while the paternal aunt sought to limit the mother's contact with the child to daytime visits only.

The court was required to decide the appropriate parenting arrangements for the child, balancing the risks of physical harm alleged by the paternal aunt against the risk of psychological and emotional harm to the child. The court had to consider the mother's vulnerability to manipulation and exploitation, the history of family violence, and the mother's lack of unsupervised contact with the child since the proceedings began. Additionally, the court had to weigh the mother's recent remarriage, stability, and the paternal aunt's actions to undermine the mother-child relationship.

The court found that the gradual reunification of the child with the mother was appropriate. It was satisfied that the mother had made significant progress in terms of stability and personal development, but also recognised the risks of harm that her naivety presented. The court also found that the paternal aunt's veneer of supporting the mother-child relationship was misleading, as she had taken steps to undermine it. The court ordered that the child would gradually reunite with the mother, subject to supervision and other conditions to mitigate the risk of harm.

The court's final orders included a schedule for the gradual reunification of the child with the mother, subject to supervision and other conditions. The paternal aunt was required to facilitate the reunification process and to cease any actions that undermined the mother-child relationship. The mother was also required to comply with any conditions set by the court to mitigate the risk of harm to the child. The court's decision was based on a careful balancing of the risks of physical and psychological harm to the child, and the mother's progress in terms of stability and personal development.

Orders