WILLS and SMITH - [2017] FCWA 74

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WILLS and SMITH [2017] FCWA 74

CORAM: O'BRIEN J

HEARD: 12 MAY 2017

DELIVERED : 12 JUNE 2017

FILE NO/S: PTW 7011 of 2012

BETWEEN: MR WILLS
Applicant
AND
MS SMITH
Respondent

Catchwords:

APPEAL FROM DECISION OF FAMILY LAW MAGISTRATE - where Appellant contends that trial Magistrate erred by failing to appoint an Independent Children's Lawyer on his own initiative when neither party sought such an appointment - where Appellant contends that trial Magistrate erred by failing to appoint a Single Expert Witness when no application for such an appointment was made until after evidence had closed at trial - where Appellant contends that trial Magistrate erred by failing to request a family report when no such report was sought by either party - where other grounds of appeal challenge findings as to credibility and weight given to various considerations - appeal dismissed.

Legislation:

Family Court Act 1997 (WA) s 66C, s 73, s 211(2)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 1.04, r 15.42, r 15.45

Category: Not Reportable

Representation:

Counsel:

Applicant: Mr H Rigby
Respondent: Mr D Klicker

Solicitors:

Applicant: Haydn Rigby Lawyers
Respondent: Beacon Family Law

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

Bondelmonte v Bondelmonte (2016) 91 ALJR 402
CDW v LVE [2015] WASCA 247
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Hoult & Hoult (2013) FLC 93-546
House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
Re K (1994) FLC 92-461

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1[Mr Wills] (“the appellant”) seeks to appeal against parenting orders made by a Family Law Magistrate on 27 October 2016 after a two day trial. The appeal is opposed by [Ms Smith] (“the respondent”).
2The orders subject of the appeal provide for the parties to have equal shared parental responsibility for their children [Child A], born [in] 2008, and [Child B], born [in] 2010 [(“the children”)]. The orders further provide for the children to live with the respondent and spend time with the appellant on alternate weekends during school terms, for specified portions of school holiday periods, and on particular special occasions.
3Those orders were made in circumstances where the children had, since the parties separated in July 2012, lived primarily with the appellant and spent time with the respondent.
4The learned trial Magistrate made various findings regarding the appellant’s criminal record, including his conviction and imprisonment for assault causing grievous bodily harm and convictions for criminal damage and other offences. His Honour made findings as to specific incidents of family violence, including one in which the appellant head-butted the respondent. He had before him evidence of abusive communications from the appellant to the respondent and made further findings as to incidents in which the appellant interfered inappropriately with…

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 WILLS and SMITH

Details

AGLC: WILLS and SMITH [2017] FCWA 74
Case: [2017] FCWA 74
Decision Date: 12 JUNE 2017

CaseChat Overview and Summary

The case of Wills and Smith involves an appeal against a decision made by a Family Law Magistrate. The Appellant argues that the Magistrate erred in several respects during the proceedings. Specifically, the Appellant contends that the Magistrate failed to appoint an Independent Children's Lawyer on his own initiative, despite neither party requesting such an appointment. Additionally, the Appellant claims that the Magistrate should have appointed a Single Expert Witness before evidence had closed at trial, even though no application for such an appointment was made until after the evidence had concluded. Furthermore, the Appellant asserts that the Magistrate should have requested a family report without any request from either party. The Appellant also challenges the credibility and weight given to various considerations by the Magistrate. The appeal was ultimately dismissed by the court.

The legal issues before the court were whether the Family Law Magistrate had correctly exercised his discretion in not appointing an Independent Children's Lawyer, a Single Expert Witness, and in not requesting a family report. Additionally, the court needed to determine if the Magistrate had erred in assessing the credibility of the parties and the weight given to various considerations. The Appellant's arguments focused on whether these decisions were within the Magistrate's discretion and whether they adhered to relevant legal standards and principles. The court had to assess whether the Magistrate's decisions were reasonable and justifiable under the circumstances.

In dismissing the appeal, the court found that the Family Law Magistrate had not erred in any of the respects argued by the Appellant. The court held that the Magistrate's discretion in not appointing an Independent Children's Lawyer, a Single Expert Witness, and in not requesting a family report was exercised appropriately. The court also found that the Magistrate's assessment of the credibility of the parties and the weight given to various considerations was not unreasonable. The court concluded that the Magistrate's decisions were within the scope of permissible discretion and were adequately supported by the evidence and legal principles. The appeal was therefore dismissed.

The court did not make any orders other than dismissing the appeal. The findings and reasoning of the Family Law Magistrate were upheld, and no further action was required in relation to the case. The Appellant's arguments regarding the Magistrate's decisions were not upheld, and the decision of the lower court remained in effect.

Orders