WORRALL and BARTLEY - [2019] FCWA 10

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WORRALL and BARTLEY [2019] FCWA 10
CORAM: O'BRIEN J
HEARD: 31 OCTOBER 2018
DELIVERED : 22 JANUARY 2019
FILE NO/S: PTW 4789 of 2010
BETWEEN: MR WORRALL
Applicant
AND
MS BARTLEY
Respondent

Catchwords:

PARENTING - where child is nine years old and parents have been litigating for eight years – where after a lengthy trial interim orders only for the child to spend time with the mother were made, with provision for a review by the single expert witness – where mother contends that interim orders should be varied immediately to increase the child’s time with her and that the orders should then be subject to still further review – where father contends that final orders should be made in terms of the interim orders, and the proceedings brought to an end - where the interim orders were made to allow for the possibility of substantial positive change in the mother’s attitudes and beliefs such that additional time with her might be in the child’s best interests – where only minimal such change has been achieved and child continues to be exposed to an inappropriate level of knowledge of the court proceedings – where continuation of the existing arrangement is in the child’s best interests – conclusion that the proceedings should be brought to an end.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Penglis
Respondent	:	Mr Rodda

Solicitors:

Applicant	:	Clairs Keeley
Respondent	:	Ferrier Athanasiou & Kakulas

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

Banks & Banks (2015) FLC 93-637
Bondelmonte & Bondelmonte (2016) 91 ALJR 402
Rice & Asplund (1979) FLC 90-725
Worrall & Bartley [2018] FCWA 132
Worrall & Bartley [2016] FCWA 57

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

1These proceedings relate to the parenting arrangements to be made for [Child A], born [in] 2009. While Child A has only just turned nine years old, her parents have been involved in litigation about her care for over eight years, with only short periods of respite.

Background

2Both parties are 49 years of age. They met in or around March 2008 and had a short relationship. They did not marry. While their perceptions of the duration of the relationship differ, on any view, the relationship had completely broken down by no later than April 2010, when Child A was seven months old.
3The father commenced proceedings in August 2010 and orders were made at an early stage for Child A to spend time with him. The proceedings continued as described in the reasons for decision published by Crisford AJ on 19 July 2016 (Worrall & Bartley [2016] FCWA 57 – “the 2016 judgment”).
4The matter was initially listed for trial to commence on 14 January 2013. After lengthy negotiations over five days, orders were pronounced on 18 January 2013 and all outstanding…

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 WORRALL and BARTLEY

Details

AGLC: WORRALL and BARTLEY [2019] FCWA 10
Case: [2019] FCWA 10
Decision Date: 22 JANUARY 2019

CaseChat Overview and Summary

In the case of Worrall and Bartley, the parents of a nine-year-old child, the court was tasked with determining parenting arrangements that had been the subject of litigation for eight years. The lengthy dispute culminated in a trial where interim orders were made for the child to spend time with the mother, with an understanding that these orders would be reviewed by a single expert witness. The mother sought an immediate variation of these interim orders to increase the child’s time with her, and further review of the orders. Conversely, the father argued that the final orders should mirror the interim orders, effectively bringing the proceedings to a close.

The court had to decide whether the interim orders should be varied to increase the mother’s time with the child and whether further review was necessary, or whether the existing arrangement should be made permanent and the proceedings concluded. The court considered the minimal positive change in the mother's attitudes and beliefs, and the child's continued exposure to the court proceedings. The interim orders had been designed to accommodate the potential for substantial positive change in the mother, which had not been achieved to a satisfactory degree.

The court concluded that maintaining the existing interim orders was in the child's best interests and that the proceedings should be brought to an end. The court's reasoning centred on the child's need for stability and the lack of significant improvement in the mother's circumstances. The court found that continuing with the existing arrangement was the most appropriate course of action, given the child's ongoing exposure to the litigation and the minimal changes observed in the mother's attitudes.

The final orders of the court maintained the interim arrangements for the child's time with the mother, with provision for a review by the expert witness. The court ordered that the proceedings be brought to an end, recognising the need for finality and stability in the child's life.

Orders