HEARD: 8, 9, 10, 11, 14, 15, 16, 17, 18 MARCH, 18 NOVEMBER 2022 - FINAL SUBMISSIONS 23 DECEMBER 2022
DELIVERED : 13 JANUARY 2023
FILE NO/S: 4789 of 2010
BETWEEN: MR WORRALL
Applicant
AND
MS BARTLEY
Respondent
Catchwords:
PARENTING - Where the only child of the relationship was born [in] 2009 and the parties have been involved in litigation about parenting issues since September 2010 – Where the child has lived with the father since February 2016 and has spent no time with the mother since April 2019 – Where the mother declined to engage with ordered supervisor and the Single Expert Witness – Where the mother retains beliefs that the father poses a risk of harm to the child notwithstanding previous findings to the contrary and her professed acceptance of those findings – Where during the currency of the proceedings, the mother has engaged in surreptitious and manipulative communication with the child which is harmful to her – Where the risk to the child arising from the mother's maintained beliefs and ongoing behaviours is unacceptable – Where there are no steps which could be taken to ameliorate or mitigate that risk while permitting the mother to spend time and communicate with the child – Consideration of the need to explain the Court's decision to the child in an age-appropriate manner and in a therapeutic context, and the means by which that might be achieved – Turns on its own facts.
[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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AGLC
WORRALL and BARTLEY [2023] FCWA 2
Case
[2023] FCWA 2
Decision Date
CaseChat Overview and Summary
The matter before the Family Court of Australia involved Worrall and Bartley, the parents of a child born in 2009. The dispute centred on the parenting arrangements for the child, which had been a subject of litigation since September 2010. The child had been living with the father since February 2016, and had not spent any time with the mother since April 2019. The mother had consistently refused to engage with the supervisor and the single expert witness appointed by the Court, and she continued to hold the belief that the father posed a risk of harm to the child, despite previous findings to the contrary. The mother's beliefs and behaviours, including surreptitious and manipulative communication with the child, were considered harmful and unacceptable. The Court was required to determine the best parenting arrangements for the child, taking into account the risk posed by the mother's beliefs and behaviours, and the need to explain the Court's decision to the child in an appropriate manner.
The Court had to address several legal issues, including the primary consideration of the child's best interests, the unacceptable risk posed by the mother's beliefs and behaviours, and the need to provide an explanation to the child in a therapeutic context. The Court had to consider whether there were any steps that could be taken to mitigate the risk while allowing the mother to spend time and communicate with the child. The Court also had to determine the most appropriate means of explaining the decision to the child in an age-appropriate and therapeutic manner.
In its reasoning, the Court found that the risk to the child arising from the mother's maintained beliefs and behaviours was unacceptable, and that there were no steps which could be taken to mitigate that risk while permitting the mother to spend time and communicate with the child. The Court concluded that it was in the child's best interests for the mother to have no contact with the child, and that any explanation of the Court's decision to the child should be conducted in a therapeutic context by a suitably qualified professional. The Court emphasised that the case turned on its own facts and that each case would be determined on its own merits.
The final orders of the Court were that the child should have no contact with the mother, and that any explanation of the Court's decision to the child should be conducted in a therapeutic context by a suitably qualified professional. The Court emphasised that its decision was based on the specific facts of the case, and that each case would be determined on its own merits.