W and L and C - [2001] FMCAfam 64

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & L & C [2001] FMCAfam 64

FAMILY LAW – Residence – contest between mother and stepmother – mother’s peripatetic lifestyle – mother’s various partners and risk to child posed by them – stepmother’s relationship with a man in prison for sexual assault.

Father:

J W

Mother:

K L

Intervener:

K C

File No:

ZC 2049 of 2000

Delivered on:

18 June 2001

Delivered at:

Canberra

Hearing Dates:

24 & 25 January 2001
24 May 2001

Judgment of:

Brewster FM

REPRESENTATION

Counsel for the Father:

Mr W appeared in person

Counsel for the Mother

Ms Tonkin

Solicitors for the Mother:

Barker & Barker

Counsel for the Intervener:

Ms Godtschalk

Solicitors for the Intervener:

Ken Johnston Bedford & Co

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT

CANBERRA

ZC 2049 of 2001

J W

Father

And

K L

Mother

And

K C

Intervener

REASONS FOR JUDGMENT

Introduction

This case concerns competing residence applications with respect to the child C W, born 26 July 1989. C is the daughter of J W and K L. Each of these parents originally sought a residence order in his or her favour. Mr W does not now press his application. The other party to the litigation is K C. Ms C is, in effect, C’s stepmother as she lived for some years with C and Mr W. She seeks an order that C reside with her.
The matter was heard on 24 and 25 January 2001 and judgment was reserved. Before judgment was delivered an application was made on behalf of Ms L to re-open and further evidence was taken on 24 May. On that date the court was informed that C had made allegations that she had been sexually assaulted by Mr W. As a result of this Mr W has been charged and is awaiting a committal hearing in the NSW Local Court. Mr W denies any sexual assault but it is unnecessary to resolve this matter as he conceded that under the circumstances no orders for either residence or contact should be made in his favour at the present time. The issue therefore is whether C should live with her mother or continue to live with her stepmother.

Background

Ms L was born on 6 August 1961 and is therefore 39 years of age. Mr W was born on 6 September 1965 and is therefore aged 35. Ms C was born on 18 November 1969 and is therefore 31 years of age. Mr W and Ms L commenced to live together in 1988. As mentioned above C was born on 26 July 1989 and the parties separated later that year. At the time they were living in Sydney. C remained with Ms L. Mr W and Ms C commenced to live together in late 1993. C came to reside with them in December 1996. In February 2000 Mr W and Ms C separated with Mr W leaving their home in Z. C remained with Ms C until July…

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 W and L and C

Details

AGLC: W and L and C [2001] FMCAfam 64
Case: [2001] FMCAfam 64
Decision Date: 18 June 2001

CaseChat Overview and Summary

The case W & L & C concerned a dispute between the child's mother and stepmother as to where the child, C, should reside. The court was required to determine whether C should live with her mother, K L, or her stepmother, K C. The primary consideration was C's best interests. The court considered various factors, including the child's wishes, the nature of her relationships with both parents, and the potential impact of any changes in her circumstances. The court also evaluated the capacity of each parent to provide for the child's needs and to protect her from harm. The stepmother had provided a stable environment for C, despite a recent move, whereas the mother had a history of instability and questionable partner choices. The court concluded that C's best interests would be served by continuing to reside with the stepmother, with provisions for regular contact with her mother and half-siblings.

In its judgment, the court outlined the history of the relationships and residences of both the mother and the stepmother, highlighting the stepmother's more stable environment and the mother's history of instability and poor partner choices. The court also considered the potential risks posed by the stepmother's partner, who was in prison for serious violent and sexual offences, and concluded that these risks were no greater than those posed by the mother's potential future partners. The court found that the stepmother had demonstrated a more responsible attitude towards the child's care and that C would be better protected in her household. The court ordered that C continue to reside with the stepmother, with provisions for holiday and weekend contact with her mother, and lifted the prohibition on C visiting her stepmother's partner in prison.

Orders