WORRALL and BARTLEY - [2018] FCWA 132

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997 (WA)
LOCATION: PERTH
CITATION: WORRALL and BARTLEY [2018] FCWA 132
CORAM: O'BRIEN J
HEARD: 26 JUNE 2018
DELIVERED : Ex tempore
FILE NO/S: PTW 4789 of 2010
BETWEEN: MR WORRALL
Applicant
AND
MS BARTLEY
Respondent

Catchwords:

PARENTING - Where after a 23 day trial interim orders were made with provision for a review by single expert to provide recommendations for any extension of child's time with the mother - Where review occurs and recommendation is for no or limited change - Role of single expert as a witness as distinct from decision maker - Principles mandated for child related proceedings - Orders made for trial on limited issues - Orders made defining evidence to be presented and witnesses to be cross-examined

Legislation:

Family Court Act 1997 (WA) Part 5, Division 11A, s 202,

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr S Penglis and Ms Keeley
Respondent	:	Self Represented Litigant

Solicitors:

Applicant	:	Clairs Keeley Lawyers
Respondent	:	Self Represented Litigant

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

Rice & Asplund (1979) FLC 90-725

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

1The proceedings before the Court relate to the parenting arrangements to be made for the child, [Child A], who was born [in] 2009. Child A is not yet nine years old, but her parents have been involved in litigation about her for only a few weeks shy of eight years, with only short periods of respite. The most recent of the trials in the proceedings concluded on 25 February 2016, after 23 days of hearings spread over some 15 months.
2At the conclusion of that trial, Crisford J made orders for the father to have sole parental responsibility and for Child A to live with him. Her Honour made further very detailed orders about Child A spending time with the mother, and various other issues, and expressed those orders to be made on an interim basis. Her Honour made a further order that 12 months after the making of those orders, the Single Expert Witness (“the SEW”) undertake a review of the parties and Child A and “provide recommendations to the Court as to whether it would be in [Child A’s] best interests to further progress the time she spends with” the mother. The proceedings were otherwise adjourned generally with liberty to relist on an urgent basis in relation to the implementation of, or compliance with, the orders.
3The SEW conducted his review as anticipated and published a report, which was distributed to the parties on 31 March 2017. Since then, the parties have been engaged in a dispute as to what is to happen from this point.

Relief sought by the parties

4By a minute filed on 28 September 2017, the mother sought that the proceedings be listed for trial, with an estimated hearing time of two to three days, to determine:
(a)the ongoing…

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 [2018] FCWA 132
Case: [2018] FCWA 132
Decision Date: 20 JULY 2018

CaseChat Overview and Summary

The case of Worrall and Bartley was before the Family Court of Australia, involving a complex dispute between parents regarding the parenting arrangements for their child. The father, Worrall, and the mother, Bartley, had been engaged in a protracted legal battle over the custody and access arrangements for their child. After a lengthy 23-day trial, interim orders were made, including provisions for a review by a single expert who would provide recommendations on whether to extend the child's time with the mother.

The legal issues before the court centred on the role and function of the single expert in child-related proceedings. Specifically, the court needed to determine the appropriate scope of the expert's role as a witness as opposed to a decision-maker, and how the principles mandated for such proceedings should be applied. The court also needed to consider whether the interim orders should be reviewed and potentially modified based on the expert's recommendations.

In its decision, the court emphasised the importance of adhering to the principles set out for child-related proceedings. It recognised that while the single expert's recommendations were valuable, the final decision on parenting arrangements rested with the court. The court outlined the orders for a trial on limited issues, specifically defining the evidence to be presented and the witnesses to be cross-examined. The court ensured that the proceedings focused on the welfare and best interests of the child, taking into account the expert's input while maintaining the judicial oversight necessary in such matters.

Orders