CULBERT and HOWLAND - [2019] FCWA 224

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: CULBERT and HOWLAND [2019] FCWA 224
CORAM: TYSON J
HEARD: 16 OCTOBER 2019
DELIVERED : Ex tempore
FILE NO/S: PTW 4355 of 2018
BETWEEN: MR CULBERT
Applicant
AND
MS HOWLAND
Respondent

Catchwords:

PARENTING – APPEAL - Application for leave to appeal against interim order of a Family Law Magistrate – Test to be applied – Where the applicant seeks leave to appeal the Magistrate’s decision to decline a stay of interim parenting orders – Leave declined – Case turns on its own facts

PRACTICE & PROCEDURE – APPEAL - Where applicant seeks to adduce further evidence on appeal – Where the is no express provision in legislation for permitting further evidence – Where the Court has the power to admit further evidence notwithstanding absence of express legislative provision

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mrs Farmer
Respondent	:	Mr Berry SC

Solicitors:

Applicant	:	Tolcon Legal
Respondent	:	Paterson & Dowding

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

AIF v AMS (1999) 199 CLR 160
Aldridge & Keaton (Stay Appeal) (2009) FLC 93-421
Bennett & Bennett (1991) FLC 92-191
CDJ v VAJ (No 2) (1998) 197 CLR 172
House v King (1936) 55 CLR 499
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101
Jess & Jess (2014) FLC 93-620
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
K & B (2006) FLC 93-288
Medlow & Medlow (2016) FLC 93-692
Pangkala & Todd [2019] FCWA 115
Rice & Asplund (1979) FLC 90-725
Searson & Searson (2017) FLC 93-788
U v U (2002) 211 CLR 238
University of Wollongong v Metwally (No 2) (1985) ALJR 481

TYSON J:

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Culbert & Howland has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1 The applicant father [Mr Culbert] and the respondent mother [Ms Howland] have two children [Child A] born [in] 2013 and [Child B] born [in] 2016.

2 On 15 June 2018 orders were made by consent which provided for the parents to have equal shared parental responsibility and for the children to live in a shared care arrangement. At that time, both parents lived in [Suburb O].

3 In November 2018 the mother relocated to [Suburb N], without the father’s consent. The father subsequently commenced child-related proceedings.

4 The matter proceeded to an interim hearing before Magistrate Glass on 16 August 2019 regarding parenting arrangements. His Honour delivered reasons on 23 August 2019 and pronounced orders which included a suspension of a number of the 2018 consent orders, permission for children to attend [B Primary School], with Child A to commence from term 4 2019…

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 CULBERT and HOWLAND

Details

AGLC: CULBERT and HOWLAND [2019] FCWA 224
Case: [2019] FCWA 224
Decision Date: 16 OCTOBER 2019

CaseChat Overview and Summary

The case of Culbert and Howland involved an appeal by the father against an interim order made by a Family Law Magistrate concerning parenting arrangements for his child. The father sought leave to appeal the Magistrate's decision to decline a stay of the interim parenting orders, arguing that the Magistrate had not considered all relevant evidence. The case was heard by the Family Court of Australia, which was tasked with determining the appropriate legal issues to be considered in such an appeal.

The court had to decide whether the father had established that the appeal was in the best interests of the child and whether there were exceptional circumstances warranting leave to appeal. Additionally, the court had to consider the issue of whether the father could adduce further evidence on appeal, despite the absence of an express legislative provision allowing for this. The court examined the relevant legislation and case law to determine the appropriate test for granting leave to appeal and the circumstances under which further evidence could be admitted.

In declining the father's application for leave to appeal, the court found that the case turned on its own facts and that the father had not demonstrated that the appeal was in the best interests of the child. The court held that the Family Court of Australia has the inherent jurisdiction to admit further evidence on appeal, even in the absence of an express legislative provision. However, in this case, the court determined that the additional evidence would not have changed the outcome of the appeal. The court concluded that the appeal was unlikely to succeed and that the father had not demonstrated exceptional circumstances warranting leave to appeal.

No further orders were made by the court in relation to the appeal. The decision reinforces the importance of considering the best interests of the child in parenting cases and the need for applicants to demonstrate exceptional circumstances when seeking leave to appeal. The court's decision also highlights the inherent jurisdiction of the Family Court of Australia to admit further evidence on appeal, subject to the discretion of the court.

Orders