WITHALL, RICHARDSON and POWLES - [2013] FCWA 54

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WITHALL, RICHARDSON and POWLES [2013] FCWA 54

CORAM: WALTERS J

HEARD: 27-28 FEBRUARY 2013

DELIVERED : 21 MAY 2013

FILE NO/S: PTW 283 of 2009

BETWEEN: DENNIS WITHALL
Applicant
AND
TANYA RICHARDSON
Respondent
AND
KIM POWLES
Intervener

Catchwords:

FAMILY LAW – Parenting orders – Whether children should live with their mother or their father's former de facto partner – Highly complex inter-familial relationships – Where there has been considerable instability in the children's lives – Where interrelationship of mother, father and father's former de facto partner and the significant involvement of the father's former de facto partner in parenting the children caused a confused set of relationships for the children – Where mother suffers from a debilitating health condition and her present husband is her carer – Where father and his present partner are unwilling or unable to have the children live with them on a full-time basis – Where the children have expressed a wish to live with the father's former de facto partner – Opinion of single expert – Where single expert concludes that father's former de facto partner appears to be the adult who has previously most consistently provided a responsible parenting role to the children – Wishes of children – Relevance of contest between the mother and non-parent – Whether significant weight should be attached to parenthood – Reference to recent Full Court decision in Yamada & Cain [2013] FamCAFC 64 – Where mother seeks sole parental responsibility and father's former de facto partner seeks equal shared parental responsibility – Orders to the effect that the parties have equal shared parental responsibility and that the children live with the father's former de facto partner

Legislation:

Family Court Act 1997 (WA), Part V, s 7A, s 66(1), s 66(2), s 66C, s 70A, s 70DA, s 84, s 84(3), s 89(1), s 89AA, s 89AC, s 89AD,
Family Law Act 1975 (Cth), Part VII, s 60CC, s 60B, s 61DA, s 64B, s 65DAA

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Self Represented Litigant
Intervener: Self Represented Litigant

Solicitors:

Applicant:
Respondent:
Intervener:

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

Champness & Hanson (2009) FamCAFC 96

Collu & Rinaldo (2010) FamCAFC 53

Donnell & Dovey (2010) FLC 93-428

Goode & Goode (2006) FLC 93-286

Hungerford & Tank (2007) FamCA 637

Jets & Maker (No 2) (2011) FMCAfam 1473

M & S (2006) FLC 93-313

Marsden & Winch (No 3) (2007) FamCA 1364

Mazorski & Albright (2007) 37 FamLR 518

McCall & Clark (2009) FLC 93-405

McLay & McLay (1996) FLC 92-667

Mills & Watson (2008) 39 Fam LR 52

Moose & Moose (2008) FLC 93-375

MRR v GR (2010) 240 CLR 461

Pender & Haywood [2007] FamCA 152656

Re F – Litigants in Person Guidelines (2001) FLC 93-072

Saxena & Saxena (2006) FLC 93-268

Sealey & Archer [2008] FamCAFC

Taylor & Barker (2007) FLC 93-345

Yamada & Cain [2013] FamCAFC 64

WORDS…

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: WITHALL, RICHARDSON and POWLES [2013] FCWA 54
Case: [2013] FCWA 54
Decision Date: 21 MAY 2013

CaseChat Overview and Summary

The case involved a dispute between two parents and a former de facto partner regarding the care of their children. The parents were not married, and the father had a new de facto partner. The children had expressed a desire to live with the father's former de facto partner. The mother suffered from a serious health condition, and her current husband was her primary caregiver. The father and his new partner were unable or unwilling to have the children live with them full-time. The case was heard in the Family Court of Australia.

The legal issues that the court had to decide included whether the children should live with their mother or the father's former de facto partner. The court also had to consider the complex inter-familial relationships and the instability in the children's lives. The court had to determine the significance of the father's former de facto partner's involvement in parenting the children, the mother's health condition, the father and his partner's inability to care for the children, and the children's wishes. The court also had to consider the opinion of a single expert, who concluded that the father's former de facto partner had been the most consistent in providing responsible parenting to the children. Finally, the court had to decide whether significant weight should be attached to parenthood.

The court found that the father's former de facto partner had been the most consistent in providing responsible parenting to the children. The court also found that the children's wishes were relevant and should be given significant weight. The court found that the mother's health condition and her current husband's role as her caregiver were important factors to consider. However, the court found that the father and his partner's inability to care for the children full-time was not a significant factor. The court found that the significant involvement of the father's former de facto partner in parenting the children had caused a confused set of relationships for the children. The court also found that the interrelationship of the mother, father, and father's former de facto partner had caused considerable instability in the children's lives. The court found that the father's former de facto partner appeared to be the adult who had previously most consistently provided a responsible parenting role to the children.

The court ordered that the children should live with the father's former de facto partner. The court also ordered that the mother and father should have reasonable access to the children. The court found that this arrangement was in the best interests of the children.

Orders