Whelan and Lester & Anor - [2022] FCWA 248

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WHELAN and LESTER & ANOR [2022] FCWA 248
CORAM: DUNCANSON J
HEARD: 4, 5, 6, 7, 8 NOVEMBER 2019, 26 OCTOBER 2020, 4, 5, 6, 7, 8 JULY 2022
DELIVERED : 1 DECEMBER 2022
FILE NO/S: 5865 of 2007
BETWEEN: MR WHELAN
Applicant
AND
MS LESTER
First Respondent
AND
MRS WHELAN
Second Respondent

Catchwords:

CHILDREN - where the proceedings concern two children in respect of whom the father is the parent of both - where the mother is the parent of one child and seeks orders in respect of both - where the other child's mother did not seek parenting orders - where the father seeks orders for family therapy and thereafter that the children spend time with him - where the mother agrees with the orders sought by the Independent Children's Lawyer which are that the children live with her, that she have sole parental responsibility for them and the father be restrained by injunction from communicating with the children unless in response to direct contact from them - where there has been family violence perpetrated by the father upon the mother and the children - where it is assessed the father does not have a mental illness - where the father has engaged in use of social media accounts to publicly refer to the proceedings - where the father has sent unacceptable correspondence to the single expert witness and the Independent Children's Lawyer - where it is found the father poses an unacceptable risk of harm to the children which cannot be ameliorated - where the impact on the mother of the children spending time with the father is taken into account - where the orders which are in the best interests of the children are those sought by the Independent Children's Lawyer and mother

Legislation:

Family Law Act 1975 (Cth) s 4, s 4AB, s 60B, s 60CA, s 60CC, s 61DA, s 121
Family Court Act 1997 (WA) s 7A, s 9A, s 66, s 66A, s 66C, s 70A

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr S Jones/Ms E Needham
First Respondent	:	Ms D Taylor
Second Respondent	:	Ms A Thackray/Ms N Hossen
Independent Children's Lawyer	:	Mr R Bannerman

Solicitors:

Applicant	:	HBR Family Lawyers/Lighthouse Legal/Wanneroo Legal
First Respondent	:	Direct Brief
Second Respondent	:	Hickman Family Lawyers/Elite Family Law
Independent Children's Lawyer	:	Bannerman Solicitors

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

Blinko & Blinko [2015] FamCAFC 146
Isles v Nelissen (2022) 367 FLR 338
Keane v Keane (2021) 62 Fam LR 190
M v M (1988) 166 CLR 69
Re Andrew (1996) FLC 92-692
Stott & Holgar and Anor [2017] FamCAFC 152

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 Whelan and Lester & Anor has been approved…

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.

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Details

AGLC: Whelan and Lester & Anor [2022] FCWA 248
Case: [2022] FCWA 248
Decision Date: 1 DECEMBER 2022

CaseChat Overview and Summary

The case of Whelan and Lester & Anor involved a dispute between the father and the mother of two children. The father sought parenting orders for family therapy and for the children to spend time with him, while the mother, who is the parent of one child, sought orders that the children live with her, that she have sole parental responsibility for them and that the father be restrained by injunction from communicating with the children unless in response to direct contact from them. The case came before the Family Court of Australia. The legal issues that the court had to decide included the best interests of the children, the impact of family violence on the children, the father's use of social media, and the father's unacceptable correspondence with the single expert witness and the Independent Children's Lawyer.

The court considered the evidence and found that the father had perpetrated family violence against the mother and the children. It was also found that the father did not have a mental illness. However, it was determined that the father posed an unacceptable risk of harm to the children, which could not be ameliorated. The court took into account the impact on the mother of the children spending time with the father. The court found that the orders that were in the best interests of the children were those sought by the Independent Children's Lawyer and the mother. These orders included that the children live with the mother, that she have sole parental responsibility for them and that the father be restrained by injunction from communicating with the children unless in response to direct contact from them.

The court made orders consistent with the findings and recommendations of the Independent Children's Lawyer and the mother. The father was restrained by injunction from communicating with the children unless in response to direct contact from them. The children were to live with the mother, who was to have sole parental responsibility for them. The father was also ordered to attend family therapy and to pay a contribution towards the costs of the proceedings. The court emphasised the importance of protecting the children from the risk of harm posed by the father.

Orders