JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: CDW -v- LVE [2015] WASCA 247
CORAM: MARTIN CJ
BUSS JA
MITCHELL J
HEARD: 12 AUGUST 2015
DELIVERED : 4 DECEMBER 2015
FILE NO/S: CACV 140 of 2014
BETWEEN: CDW
Appellant
AND
LVE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :ANDREWS M
Citation :CDW and LVE [2014] FCWAM 244
Catchwords:
Family law - Appeals - Jurisdiction of Court of Appeal - Whether orders appealed from were final or interlocutory - Orders did not finally determine rights of parents in relation to parenting orders
Family law - Rule in Rice and Asplund - Whether the magistrate misdirected herself as to the correct test - Whether purported change in circumstances sufficient to enliven rule - Turns on own facts
Legislation:
Family Court Act 1997 (WA), s 36, s 39, s 66A, s 66C, s 89, s 209A, s 210, s 210A, s 210AA, s 211
Family Law Act 1975 (Cth), s 65D, s 94AA, s 94AAA
Family Law Regulations 1984 (Cth), reg 15A
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Dr A F Dickey QC
Respondent: Ms G M Anderson
Solicitors:
Appellant: Millsteed Grasso
Respondent: DCH Legal Group
Case(s) referred to in judgment(s):
Bienstein v Bienstein [2003] HCA 7; (2003) 30 Fam LR 488
Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; (1981) 147 CLR 246
CDW and LVE [2012] FCWA 123
CDW and LVE [2014] FCWAM 244
DL & W [2012] FamCAFC 5
F & C & Child Representative [2004] FamCA 568
In the Marriage of D and Y (1995) 18 Fam LR 662
In the Marriage of Emamy and Marino (1994) 18 Fam LR 44
In the Marriage of H and P J Tudor (1991) 15 Fam LR 165
In the Marriage of L (1989) 15 Fam LR 157
In the Marriage of Rice and Asplund (1978) 6 Fam LR 570
King & Finneran [2001] FamCA 344
Licul v Corney [1976] HCA 6; (1976) 180 CLR 213
Marsden & Winch [2009] FamCAFC 152; (2009) 42 Fam LR 1
Reid & Lynch [2010] FamCAFC 184
Sheill & McMurr (No 2) [2014] FamCAFC 134
SPS & PLS [2008] FamCAFC 16
Vadisanis & Vadisanis [2013] FamCAFC 90
MARTIN CJ:
Summary
The appellant (the father) and the respondent (the mother) have a daughter who was born on 28 February 2005. They have been unable to agree upon the parenting arrangements relating to their child. The father first commenced proceedings in relation to those arrangements in December 2006, before the child was two years old. Because the father and the mother have never been married, those proceedings, and this appeal, are governed by the Family Court Act 1997 (WA) (the Act), rather than the Family Law Act 1975 (Cth) (the FLA). However, the substantive provisions of the Act with respect to parental responsibility are…
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- AGLC
- CDW v LVE [2015] WASCA 247
- Case
- [2015] WASCA 247
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of the case involved determining the finality of the orders made by the magistrate and assessing whether there was a sufficient change in circumstances to warrant a reconsideration of the existing parenting arrangements. The appeal also questioned whether the magistrate had correctly applied the relevant legal tests and principles, particularly the rule in Rice and Asplund, which pertains to the assessment of changes in circumstances for altering parenting orders.
The court meticulously examined the nature of the orders, concluding that they did not conclusively determine the rights of the parents concerning the parenting arrangements, thus classifying them as interlocutory rather than final. This classification was based on the premise that the orders left room for further applications or adjustments. The court further considered the application of the rule in Rice and Asplund, finding that the magistrate did not misdirect herself in her assessment of the change in circumstances. The court held that the evidence presented did not sufficiently demonstrate a change warranting a revision of the existing orders.
In light of the above, the appeal was dismissed, and the orders of the primary judge were upheld. The court's decision underscored the importance of adhering to established legal principles in family law matters, ensuring that any changes to parenting orders are grounded in substantial and convincing evidence of altered circumstances.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Carr v Finance Corporation of Australia Ltd, an appeal was brought without leave from a decision refusing to set aside a default judgment obtained following the defendant's failure to file a defence within the time specified. The respondent objected to the competency of the appeal. In that context, Gibbs CJ observed:[25]The respondent submits that the appeal is incompetent because the judgment appealed from is not a final judgment within s 35 of the Judiciary Act. The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside: Hall v Nominal Defendant. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theroretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one. In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court's power to grant special leave to appeal. I therefore hold that the judgment appealed from is not a final judgment and that the appeal is incompetent. [footnotes omitted][25] At 248. Mason J observed:[26]The question remains whether the refusal of an application amounts to a final order, when the practical effect of that order is to preclude the defendant from making another application to set aside the judgment, although in strict law the defendant is free to bring his application, knowing that it will inevitably fail. The present case is a striking example. Naturally the Court of Appeal could not be expected to depart from its earlier decision. Consequently a further application to set aside the judgment is of no value to the appellants. In Hewitt it was very different. The choice for the Court is whether it should continue to adopt the traditional classification of orders of this kind as interlocutory because there is the right to make another application and because the order does not deal directly with the rights in contest in the action or whether it should now classify such orders as final when their practical effect is to shut out the defendant from contesting the default judgment. Although the second alternative has some attractions, it has the disadvantage that the character of the order (whether it be final or interlocutory) could not be determined on its face, but could only be ascertained after an examination of the grounds on which the application to set aside was made, the grounds on which it was refused and the formation of a judgment as to the impact of the grounds of refusal on the prospects of bringing a second application. The adoption of this approach would bring yet a further complication to the complexities which already bedevil the existence of appeals as of right to this Court. The prospect that there could be a steady stream of appeals to this Court from orders on applications to set aside default judgments, if the character of a final order be conceded to them, is by no means an inviting prospect. Even so, I would not shrink from making that concession if it be correct in law so to do, in order to do justice to the parties. However, for the reasons already given, I do not consider it to be a correct approach. It goes without saying, that the unsuccessful party can, in an appropriate case, apply for and obtain special leave to appeal. I would therefore allow the objection to competency. [footnotes omitted] [26] At 256 - 257.