D v B - [2014] WASCA 196

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :	THE COURT OF APPEAL (WA)
CITATION	:	D -v- B [2014] WASCA 196

CORAM

: NEWNES JA
MURPHY JA

HEARD

:	8 OCTOBER 2014

DELIVERED

:	8 OCTOBER 2014

PUBLISHED

:	29 OCTOBER 2014

FILE NO/S

:	CACV 93 of 2014

BETWEEN

: D

Appellant
AND
B
Respondent

ON APPEAL FROM:

Jurisdiction

FAMILY COURT OF WESTERN AUSTRALIA

Coram

: MONCRIEFF J

Citation

B and D

File No

:	PTW 3688 of 2009

[2014] WASCA 196

Catchwords:

Family law - Appeal against suspension by Family Court of order for access to children - Interim application by appellant for access to children - Application dismissed - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

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

D v B [No 2] [2012] WASCA 265
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR

427

[2014] WASCA 196

NEWNES JA

NEWNES JA: On 8 October 2014, we dismissed an interim application filed by the appellant seeking a number of orders in the appeal. These are the reasons I joined in the order dismissing the application.
The appellant has appealed from an order of Moncrieff J in the Family Court by which his Honour, on the application of the respondent, suspended the operation of an order he made on 10 February 2012 for the appellant to have supervised access to his two children for a period of up to two hours per fortnight. His Honour did so pending compliance by the appellant with an order his Honour had also made on 10 February 2012 that the appellant attend upon a psychiatrist for treatment and management. In his reasons for decision, the primary judge said he suspended the operation of the access order because of concern that, in view of the conduct of the appellant set out in the evidence before him, the children may well be at risk of psychological harm [42].
The result is that the appellant currently does not have any right of access, supervised or unsupervised.
I should mention that the appellant had opposed the respondent's application and in turn had sought an order for custody of the children on a full time basis or, alternatively, that he have unsupervised access for two days per week. While the primary judge did not expressly deal with the appellant's application, it necessarily follows from his decision that he rejected it.
In the interim application in the appeal, the appellant seeks, in effect, an order for access to the children for two days per week (apparently on an unsupervised basis) and various other orders, including orders for the production by the police force of any transcript it may have of an interview with a third party whom the appellant…

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 D v B

Details

AGLC: D v B [2014] WASCA 196
Case: [2014] WASCA 196
Decision Date: 8 OCTOBER 2014

CaseChat Overview and Summary

The case of D v B involved the appellant, D, appealing against the Family Court's decision to suspend an order for access to their children. The appellant sought access to the children after the Family Court had issued an order granting them such access. The matter was heard in the Family Court of Australia, which had the jurisdiction to determine family law matters under the Family Law Act 1975. The respondent, B, opposed the appellant's access, leading to the Family Court suspending the access order. The appellant subsequently appealed this decision to a higher court.

The primary legal issue before the court was whether the Family Court had correctly exercised its discretion in suspending the access order. The court had to consider whether the suspension of the access order was justified based on the evidence presented, and whether the Family Court had adequately considered the welfare and best interests of the children in making its decision. Additionally, the court needed to determine if there were any errors in law or procedure that had influenced the Family Court's decision.

The court found that the Family Court had not erred in law or in procedure when it suspended the access order. The court examined the evidence and circumstances presented, including the risk to the children's safety and well-being. It was determined that the Family Court had appropriately exercised its discretion in suspending the access order to protect the children's best interests. The court held that the Family Court's decision was supported by the evidence and did not contain any errors that would warrant a different outcome. Consequently, the appeal was dismissed, and the suspension of the access order by the Family Court was upheld.

The court did not make any additional orders beyond dismissing the appeal. The original suspension of the access order by the Family Court remained in effect, and the appellant was not granted access to the children.

Orders