SHELLEY and DICKENS - [2019] FCWA 264

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: SHELLEY and DICKENS [2019] FCWA 264
CORAM: TYSON J
HEARD: 29 NOVEMBER 2019
DELIVERED : Ex tempore
FILE NO/S: PTW 6930 of 2011
BETWEEN: MS SHELLEY
Applicant
AND
MR DICKENS
Respondent

Catchwords:

FAMILY LAW – Interim parenting – Application to discharge the Single Expert Witness during the trial – Application dismissed – Case turns on its own facts

Legislation:

Family Court Act 1997 (WA)
Family Law Rules 2004 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms U
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Ms Korzeniecka

Solicitors:

Applicant	:	Calverley Johnston
Respondent	:	Self Represented Litigant
Independent Children's Lawyer	:	Platinum Legal

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

Bass & Bass (2008) FLC 93-366
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Marsh & Marsh [2011] FamCA 193

TYSON J:

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

1[Ms Shelley] and [Mr Dickens] are the parents of [G] who is now eight and a half years old. [G] lives with her mother and is currently not spending any time with her father.
2G’s parents are unable to agree on what arrangements are in her best interests. The central issue in dispute is which parent G should live with, parental responsibility and what contact, if any, G has with the other parent. The mother seeks G continue to live with her, for her to have sole parental responsibility and have no contact with the father. The father seeks G live with him, he have sole parental responsibility and G spend limited time with the mother.
3Each party has raised a number of serious risk issues about G’s safety in the care of the other parent. Those risks include allegations of family violence, physical, sexual, emotional, and psychological abuse and harm. An Independent Children’s Lawyer [(“ICL”)] has been appointed for G as well as a Single Expert Witness [(“Single Expert”)], [Mr R].
4This matter has recently been judge-managed and orders were made in October 2018 listing the matter to trial with priority, with an estimated hearing time of five to six days.
5The trial commenced before me on 10, 11, 12, 13, 14 and 19 June 2019. The proceedings were then adjourned part-heard and listed for a further three days from 27 to 29 November 2019. When the trial was adjourned, the mother’s case had been completed and the father was being cross-examined.
6The mother is represented by solicitors and counsel while the father is self-represented.
7On Wednesday, 27 November 2019 when the matter was called on for day seven of the resumed trial, 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 SHELLEY and DICKENS

Details

AGLC: SHELLEY and DICKENS [2019] FCWA 264
Case: [2019] FCWA 264
Decision Date: 29 NOVEMBER 2019

CaseChat Overview and Summary

Shelley and Dickens were the parties involved in a dispute concerning parenting arrangements. The matter was heard in the Family Court of Australia. The primary focus of the case was on the interim parenting arrangements of their child. Shelley sought to discharge the Single Expert Witness appointed during the trial, while Dickens opposed the application.

The legal issues the court had to decide included whether it was appropriate to discharge the Single Expert Witness mid-trial, and if so, what the implications of such a decision would be for the case. The court also needed to consider the impact of the proposed discharge on the integrity of the trial and the fairness of the proceedings for both parties.

In reaching its decision, the court emphasised the importance of maintaining the integrity of the trial process and ensuring that all parties had a fair opportunity to present their cases. The court held that the case turned on its own facts and circumstances, and that discharging the Single Expert Witness would not only compromise the trial but also potentially disadvantage one party. Consequently, the court dismissed Shelley's application to discharge the Single Expert Witness. The court stressed that the decision was tailored to the specific facts and procedural context of this case, leaving the broader issue open for consideration in other circumstances.

No final orders were made as the case was still ongoing at the time of the decision.

Orders