S and S - [2008] FCWA 78

[2008] FCWA 78

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975

LOCATION

: [REGIONAL CENTRE]

CITATION

:	S and S [2008] FCWA 78

CORAM

MARTIN J

HEARD

:	12 & 13 NOVEMBER 2007

DELIVERED

:	30 JUNE 2008

PUBLISHED

:	3 JULY 2008

FILE NO/S

:	PT 1273 of 2007

BETWEEN

:	S Applicant/Father

AND
S
Respondent/Grandmother

Catchwords:

FAMILY LAW - children - with whom a child lives - mother deceased - maternal grandmother - father

Legislation:

Family Law Act 1975 - s 60B, s 60CA and s 60CC

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Holme
Respondent	:	Mr Dungey

[2008] FCWA 78

Solicitors:

Applicant	:	Simon Holme
Respondent	:	Macdonald Rudder

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

Rice v Miller (1993) FLC 92-415

[2008] FCWA 78

1 The issue for determination was the father’s application, filed 9 November 2006, in the [local] Magistrate’s Court, seeking that his son, now aged eight years, live with him, that he have sole responsibility for decision-making about the care welfare and development of the child, and the child spend time with his maternal grandmother, the respondent, as agreed between the parties.
2 The grandmother filed a response, on 17 January 2007, seeking that the father’s
application be dismissed. At trial, she proposed the child continue to primarily live with her, but spend from Friday after school to Monday morning, in alternate weeks, with his father. In the alternative, she proposed that the child live with the parties on a week about basis.
3 The applicant was not specific as to the time he proposed that the child would
spend with his grandmother, saying that she should spend time with the child on the basis that most grandmothers would, which he seemed to regard as being occasional weekend visits, and during school holidays.
4 I apologise to the parties for the delay in delivering judgment. I presume, since

no attempt has been made to reopen since the trial, that the arrangements for [James],
as at trial, have continued.
5 On 30 June 2008, I made the following orders and, as foreshadowed, now publish reasons for decision:

1. Until further order:

(1) The applicant father have sole parental responsibility for the child,
[JAMES], born [in] January 2000.
(2) The child live with the applicant father for 10 days per fortnight and with the respondent grandmother for four days per fortnight on the basis that, commencing from the beginning of the next school term, the child live with the grandmother from the commencement of school on Thursday to the commencement of school on Monday each alternate weekend.
(3) The child spend half of all school holidays in the year with each
party.
(4) Either party, on six weeks’ notice, be permitted to take the child from [his home town] for a holiday and, in that event, the child may spend the whole of that holiday with them provided they provide contact numbers and addresses to the other party.
(5)

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 S

Details

AGLC: S and S [2008] FCWA 78
Case: [2008] FCWA 78
Decision Date: 30 JUNE 2008

CaseChat Overview and Summary

In the case of S and S, the Family Court was presented with a dispute concerning the custody of a child, following the death of the child's mother. The maternal grandmother sought sole parental responsibility, while the child's father contested this application, asserting his right to be involved in the child's upbringing. The case centred on the interpretation of relevant provisions of the Family Law Act, particularly those concerning the welfare of the child and the rights of parents and grandparents in custody matters.

The primary legal issue before the court was whether the best interests of the child would be served by granting sole parental responsibility to the maternal grandmother, or if the child's father should be afforded the opportunity to participate in the decision-making process regarding the child's upbringing. The court had to consider the child's welfare, the views of the child (if appropriate), and the circumstances of both the grandmother and the father, including their respective relationships with the child.

In delivering its judgment, the court found that the grandmother had a strong bond with the child, having been actively involved in the child's life prior to the mother's death. The court acknowledged the importance of stability and continuity in the child's life, as well as the potential trauma associated with a sudden change in guardianship. However, the court also recognised the father's right to be involved in the child's upbringing, emphasising the importance of both parents in a child's life, even in the absence of the child's mother. The court ultimately concluded that the child's best interests would be served by granting sole parental responsibility to the maternal grandmother, while also ordering that the father be allowed to have regular contact with the child. This decision aimed to balance the child's need for stability and continuity with the father's right to maintain a relationship with his child.

Orders