Whitfield and Moore and Anor - [2019] FCWA 250

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WHITFIELD and MOORE & ANOR [2019] FCWA 250
CORAM: O'BRIEN J
HEARD: 26 NOVEMBER 2019
DELIVERED : Ex tempore
FILE NO/S: PTW 2083 of 2008
BETWEEN: MS WHITFIELD
Applicant
AND
MR MOORE
First Respondent
AND
MS THOMSON
Second Respondent

Catchwords:

PARENTING - CONTRAVENTION - Where contraventions admitted and no reasonable excuse established - Turns on its own facts.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Self-Represented Litigant
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Self-Represented Litigant

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

McClintock & Levier (2009) FLC 93-401
Oswin & Oswin [2019] FamCAFC 164
Rice & Asplund (1979) FLC 90-727
Whitfield & Moore & Anor [2018] FCWA 128

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 Whitfield, Moore & Thomson has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1The matter for determination is the Form 18 contravention application filed by [Ms Whitfield] (“the grandmother”) by which she alleges that the respondents, her son [Mr Moore] (“the father”) and [Ms Thomson] (“the mother”) have contravened orders made by me on 23 July 2018 without reasonable excuse.
2Those orders provide for the children of the respondents, [Child A] born [in] 2008, [Child B] born [in] 2009, and [Child C] born [in] 2012 to spend time with the grandmother.
3The orders as framed provide for that time to occur for a period of eight weeks from the date of the orders each alternate Friday from the end of school or 3.00 pm until 6.00 pm. Thereafter, the children were to spend time with the grandmother again each alternate Friday – with those visits themselves alternating between a short visit from the end of school or 3.00 pm until 6.00 pm, and a longer visit extending to 9:30 am on the following day. Otherwise, specific orders were made for the grandmother to spend time with the children for each child’s birthday party, and on each Christmas Day from 10.00 am to 1.00 pm by joining in the relevant family celebrations unless the respondents agreed in writing to her taking the children away to spend time with them alone. Various other specific issues orders were made.
4The primary orders were made following a trial which took place on 2 July 2018. The mother participated in the trial and was represented by a lawyer; the father did not attend. The grandmother was self-represented. The relevant background leading to that trial, and the evidence given in it and my relevant findings, are summarised in my judgment published on 23 July 2018 and do not require repetition for present purposes.[1] Fundamentally, however, it…

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.

Keep reading for free

Create a free CaseChat account to read Whitfield and Moore and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] FCWA 250
Decision Date: 26 NOVEMBER 2019

CaseChat Overview and Summary

The case of Whitfield and Moore and Anor was heard in the Family Court of Australia. The dispute involved a parenting arrangement, specifically concerning alleged contraventions of that arrangement. The primary focus was on whether the respondents had contravened the parenting order and, if so, whether there was a reasonable excuse for those contraventions. The matter proceeded on the basis that the respondents admitted to the contraventions but contested the absence of a reasonable excuse.

The legal issues that the court needed to decide included the interpretation of the parenting order, the nature of the alleged contraventions, and whether the respondents had provided a reasonable excuse for their actions. The court had to consider the specific circumstances of each contravention, the intention behind the parenting order, and the broader context of the parties' relationship and the child's welfare.

The court found that the respondents had indeed contravened the parenting order, and further, that they had not provided a reasonable excuse for their actions. The reasoning was based on the detailed evidence presented, which showed that the contraventions were deliberate and had a significant impact on the child. The court emphasised that each case turns on its own facts and that the respondents' behaviour did not align with the spirit and intention of the parenting order. Consequently, the court ruled in favour of the applicant, affirming the contraventions and rejecting the respondents' excuse.

The final orders included a declaration that the respondents had contravened the parenting order and that there was no reasonable excuse for their actions. The court did not impose any additional penalties but directed the respondents to comply strictly with the terms of the parenting order in the future.

Orders