WADE and BRAUN - [2013] FCWA 31

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975
FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WADE and BRAUN [2013] FCWA 31

CORAM: MARTIN J
WALTERS J

HEARD: 31 MARCH, 1-6 & 21 APRIL, 9 MAY 2011, 8 FEBRUARY 2012 & 4 FEBRUARY 2013

DELIVERED : 8 APRIL 2013

FILE NO/S: PTW 5286 of 2008

BETWEEN: JANE MARY WADE
Applicant
AND
DANIEL MICHAEL BRAUN
Respondent

Catchwords:

FAMILY LAW – PARENTING – where mother seeks sole parental responsibility and father seeks equal shared parental responsibility – whether the presumption that it is in children’s best interests for parents to have equal shared parental responsibility applies – whether the presumption has been rebutted – effect of earlier consent orders for equal shared parental responsibility – where parties choose not to communicate with each other on a face-to-face basis for their own reasons – where parties otherwise able to communicate with each other – order for equal shared parental responsibility made

FAMILY LAW – PRACTICE AND PROCEDURE – evidence – conduct of proceedings – obligations of legal practitioners – requirement to ensure that parenting cases are focused on the criteria set out in the Family Court Act (1977) (WA) and relevant considerations – where mother ran a wholly negative case – where aspects of the cross-examination were improper

FAMILY LAW – PROPERTY – alteration of property interests under the Family Court Act (1977) (WA) – consideration of the parties’ respective contributions – consideration of s 205ZD(3) factors

Legislation:

Family Court Act 1997 (WA), Part V, s 51, s 66, s 66A, s66C, s 70A, s 70DA, s 84, s 89, s 89AC, s 89AD, s 89AA, s 205ZD, s 205ZG.
Family Law Act 1975 (Cth), Part VII, s 60B, s60CC, s61DA, s 64B, s 65DAA, s 75(2), s 79.
Evidence Act 1995 (Cth), s 44

Category: Not Reportable

Representation:

Counsel:

Applicant: Ms V Amidzic
Respondent: Ms G Anderson

Solicitors:

Applicant: Amidzic Lawyers
Respondent: Richard Warner & Associates

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

B & B (2006) FamCA 883
Bonacci & Bonacci (2012) FamCAFC 15
Carpenter & Lunn (2008) FLC 93-377
Champness & Hanson (2009) FLC 93-407
Chappell & Chappell (2008) FLC 93-382
Collu & Rinaldo (2010) FamCAFC 53
DL & W (2012) FLC 93-496
G & G (2004) FamCA 1179
Gollings & Scott (2007) FLC 93-319
Goode & Goode (2006) FLC 93-286
Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93-143
Hungerford & Tank [2007] FamCA 637
In the marriage of Bremner & Bremner (1995) FLC 92-560
In the marriage of Clauson & Clauson (1995) FLC 92-595
In the marriage of Ferguson & Ferguson (1978) FLC 90-500
In the marriage of Ferraro & Ferraro (1993) FLC 92-335
In the marriage of Lee Steere & Lee Steere (1985) FLC 91-626
In the marriage of McLay & McLay (1996) FLC 92-667
In the marriage of McMahon & McMahon (1995) FLC 92-606
In the marriage of Money & Money (1995) FLC 92-485
In the marriage of Pastrikos &…

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 WADE and BRAUN

Details

AGLC: WADE and BRAUN [2013] FCWA 31
Case: [2013] FCWA 31
Decision Date: 8 APRIL 2013

CaseChat Overview and Summary

In the case of Wade and Braun, the parties were engaged in a dispute over the care of their children. The mother sought sole parental responsibility, while the father sought equal shared parental responsibility. The Family Court was tasked with determining the appropriate parenting arrangement for the children, considering the statutory presumptions and the best interests of the children.

The legal issues before the court included whether the presumption that it is in the children's best interests for the parents to have equal shared parental responsibility applied in this case. Additionally, the court had to decide whether this presumption had been successfully rebutted by the mother. The effect of earlier consent orders that provided for equal shared parental responsibility was also considered, as were the circumstances in which the parties chose not to communicate with each other face-to-face. Despite this, the parties were otherwise able to communicate with each other. The court's decision hinged on whether these factors warranted a departure from the statutory presumption.

In its reasoning, the court found that the statutory presumption in favour of equal shared parental responsibility had not been rebutted by the mother. The court acknowledged the importance of the earlier consent orders and the ability of the parties to communicate in a manner other than face-to-face. The court concluded that the children's best interests were best served by maintaining an equal shared parental responsibility arrangement. The court's decision was guided by the overarching principle of ensuring that the children's welfare remained paramount in the resolution of the dispute.

The final orders of the court granted equal shared parental responsibility to both parties, recognising the statutory presumption and the circumstances of the case. The court emphasised the importance of maintaining open communication between the parents for the sake of the children, despite their personal reasons for not engaging in face-to-face interactions.

Orders