VANDERS and HALL - [2020] FCWA 205

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: VANDERS and HALL [2020] FCWA 205
CORAM: DUNCANSON J
HEARD: 15, 16, 17, 20, 21 and 23 JULY 2020
DELIVERED : 19 NOVEMBER 2020
FILE NO/S: PTW 2736 of 2018
BETWEEN: MS VANDERS
Applicant
AND
MR HALL
Respondent

Catchwords:

CHILDREN - Where it is in the best interests of the children that the parties have equal shared parental responsibility for them - where the mother has sole parental responsibility for selecting the primary school to be attended by the children

PROPERTY - Where the application is made within two years after the parties' de facto relationship ended - Where it is just and equitable to make a property settlement order - Where a holistic assessment of the contributions by the parties is undertaken

Legislation:

Family Court Act 1997 (WA) s 9A, s 66, s 66A, s 66C, s 70A, s 89AA, s 205ZB, s 205ZD, s 205ZG

Interpretation Act 1984 (WA) s 13A

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr J Hedges SC
Respondent	:	Ms L De Maio

Solicitors:

Applicant	:	WA Family Legal
Respondent	:	Culshaw Miller

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

Chorn and Hopkins (2004) FLC 93-204
Dickons v Dickons (2012) 50 Fam LR 244
Holland & Holland (2017) FLC 93-798
Steinbrenner v Steinbrenner [2008] FamCAFC 193
Trask & Westlake (2015) FLC 93-662
Trevi & Trevi (2018) FLC 93-858
Truman & Clifton [2010] FCWA 91

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 Vanders & Hall 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 Vanders], the mother and [Mr Hall], the father are unable to agree about the parenting arrangements for their children [Child A] aged eight years and [Child B] aged seven years. Currently the children live with the mother and spend five nights each fortnight with the father. The father seeks to increase the children's time with him, such that by the beginning of 2021 the children spend equal time with the parties. The mother is opposed to the orders sought by the father for equal time.

THE PARENTING ISSUES IN DISPUTE

2The parenting issues in dispute include the following:
•parental responsibility;
•the live with and spend time arrangements for the children during the school terms; and
•the school to be attended by the children.

THE AGREED PARENTING ORDERS

3The parties were able to agree many parenting issues including the children's arrangements during the school holidays and on special occasions. The parties agreed orders in relation to their communication, handover, provision of information, overseas travel, attendance at special events and restraints as to their conduct. The agreed orders were contained in a minute of final orders by consent which became Exhibit 9.

THE PARENTING ORDERS SOUGHT AT TRIAL

4The mother…

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 VANDERS and HALL

Details

AGLC: VANDERS and HALL [2020] FCWA 205
Case: [2020] FCWA 205
Decision Date

CaseChat Overview and Summary

The mother and father are unable to agree about the parenting arrangements for their children, [Child A] aged eight years and [Child B] aged seven years. The mother proposes to have sole parental responsibility for the children. She proposes that during the school term the children live with her and spend time with the father in a fortnightly cycle. The father proposes that the parties have equal shared parental responsibility for the children and that during the school term the children spend time with him in Week 1 from Friday to Tuesday and in Week 2 from Tuesday to Thursday. The father also seeks an order that the parties be restrained from changing the children's school without the prior written consent of the other party. He opposes the change of school from School A as proposed by the mother.The Court found that it was in the best interests of the children that the parties have equal shared parental responsibility for them. The Court determined that the children's living arrangements should be as follows:•The children will live with the mother for nine nights and with the father for five nights out of every 14 during the school terms; and•The children will spend equal time with the parties during the school holidays.The Court found that it was just and equitable that the parties' property be divided as follows:•The father is to pay to the mother $451,599 within 90 days of the orders;•The mother is to transfer all her right, title and interest in Property B to the father;•The father is to refinance the mortgages on Property B into his sole name, discharge in full the Property B mortgages and release the mother from the Property B mortgages;•The father is to indemnify and keep indemnified the mother against all liabilities in respect of the mortgage repayments, expenses and outgoings in relation to Property B;•The father is to transfer his Motor Vehicle A, superannuation and household contents to the mother; and•The mother is to transfer Property A, her country property, superannuation and household contents to the father.

Orders