Wardle and Wardle - [2016] FamCAFC 77

FAMILY COURT OF AUSTRALIA

WARDLE & WARDLE

[2016] FamCAFC 77

FAMILY LAW – APPEAL – CHILDREN – The husband appealed a condition on a residence order requiring him to live with his parents – The husband has convictions for possessing child pornography – The trial judge did not fail to identify the risk posed by the husband, did not err in finding that the risk was unacceptable unless the husband lived with his parents, did not fail to give reasons for imposing the condition, did not improperly discount the evidence of the single expert and did not fail to consider the long-term impact of the orders – Appeal dismissed – Order for the husband to pay the wife’s costs.

Family Law Act 1975 (Cth) – s 60CC(3)(l)

Australian Coal and Shale Employees’ Federation v Commonwealth (1953) 94 CLR 621
CDJ v VAJ (1998) 197 CLR 172
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Simmons & Kingley [2014] FamCAFC 47
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598

APPELLANT:

Mr Wardle

RESPONDENT:

Ms Wardle

FILE NUMBER:

PTW

109

2013

APPEAL NUMBER:

2015

DATE DELIVERED:

13 May 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray, Kent & O’Brien JJ

HEARING DATE:

19 April 2016

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

18 September 2015

LOWER COURT MNC:

[2015] FCWA 85

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Moser

SOLICITOR FOR THE APPELLANT:

Patrick Legal

COUNSEL FOR THE RESPONDENT:

Mr Lafferty

SOLICITOR FOR THE RESPONDENT:

Tyrone B Grantham

Orders

The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wardle & Wardle has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 25 of 2015
File Number: PTW 109 of 2013

Mr Wardle

Appellant

And

Ms Wardle

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Wardle (“the husband”) appeals against an order made by Duncanson J on 18 September 2015. The appeal is opposed by Ms Wardle (“the wife”).
The order requires the husband to reside in his parents’ home while the two boys who are the subject of the proceedings are living with him. The husband seeks to have that condition discharged so he is free to live where he wants.
The wife did not cross-appeal against the order that the children live with the husband, but seeks to maintain the condition about his place of residence, which is designed to protect the children from an unacceptable risk of harm from the husband, who has convictions for possessing child pornography.
At trial, the Independent Children’s Lawyer supported the husband’s application that the children live with him.…

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 Wardle and Wardle

Details

AGLC: Wardle and Wardle [2016] FamCAFC 77
Case: [2016] FamCAFC 77
Decision Date: 13 May 2016

CaseChat Overview and Summary

The case of Wardle and Wardle involves a family law dispute where the father's suitability as a carer for the children was in question. The matter was brought before the court where the judge examined evidence regarding the father's risk of reoffending and his need for supervision. The primary issue before the court was whether the trial judge erred in imposing a condition that the father must live with his parents as part of his care arrangement for the children.

The court was required to decide if the trial judge adequately considered all relevant evidence before concluding that the father's living arrangement with his parents was a protective factor. Specifically, the court examined whether the trial judge overlooked evidence suggesting that moving out of his parents’ home would not inherently increase the father's risk of reoffending. This required a careful review of the evidence presented by the experts and the father’s circumstances.

The court found that the trial judge did not err in imposing the condition that the father must live with his parents. The judge appropriately considered the father’s need for stable support, which was provided by his parents. The court emphasised that this arrangement was crucial in preventing the father from relapsing into his previous habit of using child pornography. The evidence indicated that the father's parents played a significant role in his stability and support system, making their continued presence a protective feature. The court concluded that the judge's decision was well-founded and appropriately balanced the father's circumstances with the children's welfare.

In light of the above, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs of the appeal.

Orders

Orders of the court

The appeal be dismissed.

The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.

Background

Background to the litigation

At [169] and [172], her Honour also cited these passages from Ms S’s first report (emphasis added): It is my opinion that Mr [Wardle] may be categorised as a Regressed/Situational Offender, where his sexual interest in children is a consequence of the combination of several factors including developmental immaturity, interpersonal deficits, isolation, poor insight, Depression and Substance Dependence.These more dynamic risk factors are generally amenable to treatment and responsive to intervention. It is therefore my opinion that Mr [Wardle’s] particular pathway to his current pornography offence renders him amenable to sex offender treatment. In addition, Mr [Wardle] has a very sound premorbid background, his family [of] origin support is stable and he has not used cannabis for a period of 3 years. These factors are further indications that his prospect of positive rehabilitation [is] reasonable.…It is my opinion that with the insight and skills attained in therapy combined with his continued abstinence from substances [sic] use and close support of his parents, Mr [Wardle’s] prospects for maintaining his abstinence from use of child pornography are very good. At [264], her Honour specifically referred to the support the husband receives from his parents and the fact that they assist him with the care of the children, before going on, just two paragraphs later, to find (emphasis added): 266 Balancing the foregoing matters, I conclude that the husband is not an unacceptable risk to the children as long as his care of them is overseen by his parents by him continuing to live with them in their home. In the event that his parents do not oversee his care, I consider the risk becomes an unacceptable one. That risk may diminish in the future, depending on the husband’s circumstances and as the children get older. In our view, when her Honour referred to “the foregoing matters”, she had in mind the evidence that residing in the home of his parents provided stable support to the husband who, at times, had been depressed, lonely, bored and socially isolated, and who had used cannabis heavily when viewing child pornography. Accordingly, the protective feature of the condition she imposed was not so much that it might prevent the children inadvertently seeing child pornography (given that the husband’s parents lived in a separate part of the house) but rather that living in his parents’ home would make it more likely that the husband would not revert to his habit of using child pornography. This element of the complaint could not be directed to Mr B’s finding that the husband was at a low risk of reoffending since her Honour accepted this evidence. The complaint must therefore be directed only to Mr Burke’s evidence relevant to the condition that the husband must live with his parents. It was submitted that the trial judge erred in failing to refer to Mr B’s evidence that the husband moving out of his parents’ home would not “increase his risk of reoffending per se”, and hence would not impact on his recommendation that the boys should reside with the husband. However, this part of the evidence must be read in context, and we therefore set out the relevant passage below (trial transcript, 31 October 2014, p 26; emphasis added):[HER HONOUR] Now, you say, in your view, the children are at minimal risk of being harmed in either parent’s care. Currently, Mr [Wardle] lives in his parents’ home. If he were to move out and live independently with the children, in other words, with no presence of his parents, would that have any – would that make any difference on your recommendations?---[MR [B]] It wouldn’t. It wouldn’t. Certainly be something that he would need to consider. Certainly it takes away a strong support basis, however, it doesn’t remove them totally by not being able to provide other means of support.It also removes ‑ ‑ ‑?‑‑‑I don’t think it’s – it doesn’t increase his risk of reoffending per se.No, no. But it removes a very, very low level of supervision, doesn’t it? The parents are in the home?‑‑‑Well, it does remove ‑ ‑ - At the moment?‑‑‑ ‑ ‑ ‑ that. Yes. Yes.That goes. And that’s my point. Does that make any difference?‑‑‑My view that it doesn’t. I don’t consider that he needs to be, you know, supervised either formally or informally.

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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