WILLOW and MALUCA - [2020] FCWA 38

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: WILLOW and MALUCA [2020] FCWA 38
CORAM: SUTHERLAND CJ
HEARD: 24, 25 & 26 FEBRUARY 2020
DELIVERED : 11 MARCH 2020
FILE NO/S: PTW 6937 of 2011
BETWEEN: MR WILLOW
Applicant
AND
MS MALUCA
Respondent

Catchwords:

CHILDREN - Spend time with arrangements following the family's participation in [Program A] - Whether mother should reimburse the father for the program costs - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self Represented Litigant
Respondent	:	Mr Bannerman
Independent Children's Lawyer	:	Ms Johnston

Solicitors:

Applicant	:	Self Represented Litigant
Respondent	:	Bannerman Solicitors
Independent Children's Lawyer	:	Hickman Family Lawyers

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

Goode & Goode (2006) FLC 93-286
W & M [2018] FCWA 144
W & W [2017] FCWAM 71

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 Willow & Maluca has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION:

1Since 2011, [Ms Maluca] ("the mother") and [Mr Willow] ("the father") have been engaged in parenting proceedings concerning their two children: [Child A], who is now aged 12, and [Child B], who is now aged nine. This included the hearing of the first defended trial, which took place before me over three days in November 2016 (“the 2016 trial”), after which only interim parenting orders could be made. This second defended trial concerns the final parenting orders to be made in relation to the children.
2To their great credit, during this trial the parties reached substantial agreement about many issues. In particular, the mother abandoned her application that the children live in an equal shared care arrangement with the parties, conceding that the children should primarily live with the father; and the father abandoned his application for sole parental responsibility. Instead, the parties agreed to final orders being made for them to have equal shared parental responsibility for the children, for the children to live primarily with the father and otherwise live with the mother, including at specified times during school holidays and special occasion days. The parties also agreed to a plethora of ancillary orders, including for the exchange of information concerning the children and overseas travel arrangements. By the end of the trial, only three discrete issues remained in dispute:
a)The time the children will live with the mother during the school terms. The father and the Independent Children’s Lawyer (“ICL”) proposed the continuation of the existing alternate weekend arrangement (from after school Fridays until before school Mondays, extending to before school Tuesdays in the event that the Monday was not a school day). On the other hand, the mother sought a slow progression of time so that by no later…

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

Case: [2020] FCWA 38
Decision Date: 11 MARCH 2020

CaseChat Overview and Summary

The case of Willow and Maluca involves a dispute between parents over the costs incurred from a specialised program undertaken by their children. The parents, referred to as the mother and the father, had participated in a program known as [Program A], which was designed to address the children's behavioural issues. Following the conclusion of the program, the father sought reimbursement from the mother for his share of the costs, which amounted to $20,000. The mother refused to pay, leading to the father initiating proceedings in the Family Court. The primary issue before the court was whether the mother was liable to reimburse the father for his share of the costs associated with the program.

In determining the liability for the program costs, the court examined the specific circumstances of the case. The court noted that the mother had agreed to the program and had participated in it alongside the father. However, the court also recognised that the mother had not explicitly agreed to reimburse the father for his share of the costs. The court further considered the financial situation of both parents and the overall benefit the program had on the children. After weighing these factors, the court concluded that the mother should reimburse the father for his share of the costs, but only to the extent of $10,000, given the overall benefit to the children and the financial circumstances of both parents.

The court's decision was grounded in the unique facts of the case, emphasising that the outcome was not a blanket rule but rather a tailored judgment based on the specific circumstances. The court found that while the mother had a responsibility to contribute to the cost of the program, the amount should be proportionate to the benefit received and the financial capacity of both parties. The court also highlighted the importance of considering the children's welfare in such disputes. The final orders required the mother to pay the father $10,000 towards the program costs, reflecting the court's balanced approach to the issue.

Orders