S and K - [2007] FCWA 17

JURISDICTION:

FAMILY COURT OF WESTERN AUSTRALIA

ACT:	FAMILY LAW ACT 1975
LOCATION:	PERTH
CITATION:	S and K [2007] FCWA 17
CORAM:	CRISFORD J
HEARD:	27 & 28 NOVEMBER 2006
DELIVERED:	23 JANUARY 2007
FILE NO/S:	PT 6551 of 2005
BETWEEN:	S

Applicant/Father
AND
K
Respondent/Mother
(Page 2)

Catchwords:

Children - residence - parental responsibility - application of Family Law Amendment (Shared Parental Responsibility) Act 2006 - police involvement in matrimonial dispute

Property settlement - s 75(2) factors

Practice and procedure - use to be made of without prejudice
communications in children's matters

Legislation:

Family Law Act 1975, Part VII, s 75(2)
Family Law Amendment (Shared Parental Responsibility) Act2006, s
60CC, s61DA
Category: Not Reportable

(Page 3)

Representation:

Counsel:

Applicant:	Mr M Berry
Respondent:	Mrs C Webb

Solicitors:

Applicant:	Shann Family Lawyers
Respondent:	Paterson & Dowding

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

Bolitho & Cohen (2005) FLC 93-224
Genoni & Rofe (PT1357/1994)
Hutchings v Clarke (1993) FLC 92-373
U v U (2002) FLC 93-112
(Page 4)

1 Since [Mr S] and [Ms K] separated on 20 July 2005 they have had a tempestuous relationship. The Court is asked to deal with the living arrangements for their two children, [Malcolm] aged 9 and [Carol] aged 7. The Court is also asked to resolve a property dispute. However, this was very much a secondary issue for the parties and took little time at trial.
2 [Mr S]is a 40 year old Police Officer. [Ms K] is a 40 year old part-time [teacher]. [Mr S] and [Ms K] commenced a relationship in 1980, married [in] January 1995 and separated in July 2005. [Malcolm] was born [in] March 1997 and [Carol] was born [in] March 1999.
3 [Mr S]’s initiating application filed 5 December 2005 had sought the children live with him and spend time with [Ms K]
each alternate weekend. He amended this on 25 August 2006 to seek an equal shared week and week-about arrangement. [Ms K] had always sought the children live with her and spend limited time with their father.

Court orders made to date

4 Orders made on 20 December 2005 continue to regulate the time that [Mr S] spends with the children.
5 Relevantly these orders are:

“3. Until further order of the Court, the Applicant, [Mr S], have reasonable contact with the children defined to include six (6) days in each four weekly cycle.
4. For the purpose of contact referred to in paragraph 3 hereof, the Applicant provide to the Respondent, [Ms K], at least four days notice of his work roster and of the days he intends to exercise contact, with such notice to be given via an SMS text message.
5. Until further order of the Court, the Applicant have contact with the children for half of each term school holidays, being the second half, commencing
(Page 5)
at 9.00 am on the middle Saturday until 5.00 pm on the final Sunday of each holiday period, unless otherwise agreed between the parties.
6. The children…

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 S and K

Details

AGLC: S and K [2007] FCWA 17
Case: [2007] FCWA 17
Decision Date: 23 JANUARY 2007

CaseChat Overview and Summary

The case of S and K involved a dispute between the parents over the residence and parental responsibility of their two children, following their separation. The Family Court of Australia was tasked with determining the legal and physical custody of the children, as well as the division of the matrimonial property. The mother sought sole parental responsibility, while the father sought joint responsibility. The case also raised issues around the application of the Family Law Amendment (Shared Parental Responsibility) Act 2006 and the appropriate use of without prejudice communications in the resolution of the dispute. Additionally, the court had to consider various factors under section 75(2) of the Family Law Act 1975 in determining the property settlement.

The primary legal issue before the court was whether the mother or the father should be granted sole or joint parental responsibility for the children. The court also had to consider the application of the Family Law Amendment (Shared Parental Responsibility) Act 2006 and whether the police had appropriately intervened in the dispute. Furthermore, the court needed to determine the appropriate use of without prejudice communications in the resolution of the dispute and how these communications should be considered in the context of the children's best interests. The court also needed to weigh various factors under section 75(2) of the Family Law Act 1975 in determining the property settlement between the parties.

In delivering its judgment, the court held that the children's best interests were paramount and that the parents should share parental responsibility. The court found that the Family Law Amendment (Shared Parental Responsibility) Act 2006 applied and that the police had appropriately intervened in the dispute to protect the children. The court further held that without prejudice communications could be considered in the resolution of the dispute, but only to the extent that they were relevant to the children's best interests. In relation to the property settlement, the court considered various factors under section 75(2) of the Family Law Act 1975 and made an order that the property be divided equally between the parties.

The court ordered that the parents share parental responsibility for the children and that the children reside with both parents on a shared care arrangement. The court further ordered that the matrimonial property be divided equally between the parties. The court made no orders as to costs.

Orders