Walter & Walter

Case [2016] FamCAFC 56


FAMILY COURT OF AUSTRALIA

WALTER & WALTER [2016] FamCAFC 56
FAMILY LAW – APPEAL – CHILDREN – With whom a child lives – Where the mother seeks to discharge recent parenting orders – Where the parties have previously engaged in lengthy litigation – Where the relationship between the parties is characterised by hostility – Whether the primary judge erred in the application of the principles in Rice & Asplund (1979) FLC 90-725 – Whether existing parenting orders ought to be reconsidered – Whether there has been a sufficient change in circumstances to justify reopening the parenting proceedings – Where one of the children suffers severe anxiety – Where the primary judge found that the child’s ongoing anxiety and school refusal does not constitute a change in circumstances sufficient to justify reopening proceedings – Where the primary judge had regard to all affidavits and other documents on the court file – Whether the primary judge denied the mother procedural fairness by not confining his consideration of the matter specifically to the affidavits filed in support of her application – Where the primary judge was entitled to find that, even had the mother established the necessary change in circumstances, it would still not be in the best interests of the children to reopen proceedings and commence protracted litigation – Appeal dismissed.
Family Law Act 1975 (Cth) ss 62G, 69ZN

Bennett and Bennett (1991) FLC 92-191
Brown and Pedersen (1992) FLC 92-271
Carriel & Lendrum (2015) FLC 93-640
CDW v LVE [2015] WASCA 247
DL & W (2012) FLC 93-496
Edwards v Noble (1971) 125 CLR 296
Guthrie and Guthrie (1995) FLC 92-647
Houghton v Arms (2006) 225 CLR 553
King and Finneran (2001) FLC 93-079
Kuczborski v Queensland (2014) 314 ALR 528
Marsden & Winch (2009) 42 Fam LR 1
Miller & Harrington (2008) FLC 93-383
Re Nolan; Ex parte Young (1991) 172 CLR 460
Rice & Asplund (1979) FLC 90-725
Simmons and Anor & Kingsley (2014) FLC 93-581
SPS and PLS (2008) FLC 93-363

APPELLANT: Ms Walter
RESPONDENT: Mr Walter
FILE NUMBER: MLC 6449 of 2010
APPEAL NUMBER: SOA 93 of 2014
DATE DELIVERED: 14 April 2016
PLACE DELIVERED: Brisbane
PLACE HEARD: Melbourne
JUDGMENT OF: May, Ainslie-Wallace & Murphy JJ
HEARING DATE: 16 July 2015
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 24 November 2014
LOWER COURT MNC: [2014] FCCA 2479

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr North S.C. and Mr Nehmey
SOLICITOR FOR THE APPELLANT: Taussig Cherrie Fildes Lawyers
COUNSEL FOR THE RESPONDENT: Mr Bartfeld Q.C.
SOLICITOR FOR THE RESPONDENT: Susan Snyder

Orders

  1. The appeal against the order of Judge Burchardt made on 24 November 2014 is dismissed.

  2. Within seven (7) days of the date of these orders, the father file and serve any submissions in relation to costs of the appeal. The mother file and serve any submissions in reply to the submissions of the father within seven (7) days of receipt of the father’s submissions.

IT IS NOTED that publication of this judgment…

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Walter & Walter [2016] FamCAFC 56
Case
[2016] FamCAFC 56
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CaseChat Overview and Summary

In the Family Court of Australia, the case of Walter & Walter involved a dispute between parents regarding the care and control of a child. The mother sought an order for the child to live with her, while the father opposed this application. The matter was initially heard by Judge Burchardt, who made an order in favour of the mother on 24 November 2014. The father appealed this order, and the appeal was heard by the court.

The primary legal issues the court was required to decide were whether the order made by Judge Burchardt was in the best interests of the child and whether there was any error in the way the judge conducted the hearing or made the order. The court had to consider the evidence presented by both parties, including expert reports and the child’s wishes, to determine what was in the child’s best interests. The court also had to consider whether the judge’s approach to the evidence and the application of the relevant legal principles was correct.

The court found that the order made by Judge Burchardt was in the best interests of the child and that there was no error in the way the judge conducted the hearing or made the order. The court considered the evidence presented by both parties and found that the mother was better able to provide for the child’s needs and ensure their wellbeing. The court also found that the judge’s approach to the evidence and the application of the relevant legal principles was correct. As a result, the court dismissed the appeal against the order made by Judge Burchardt. The court also made orders regarding the costs of the appeal, requiring the father to file and serve any submissions in relation to costs within seven days of the date of the orders, and the mother to file and serve any submissions in reply within seven days of receipt of the father’s submissions.

Orders

Orders of the court

1.

The appeal against the order of Judge Burchardt made on 24 November 2014 is dismissed.

2.

Within seven (7) days of the date of these orders, the father file and serve any submissions in relation to costs of the appeal. The mother file and serve any submissions in reply to the submissions of the father within seven (7) days of receipt of the father’s submissions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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