DKG -v- SJB [2016] WASCA 149

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASCA 149
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:49/2015	Heard:	23 MAY 2016
Coram:	NEWNES JA MURPHY JA MITCHELL JA	Delivered:	26/08/16
No of pages:	18	Judgment Part:	1 of 1
Result:	Extension of time within which to appeal refused Appeal dismissed
Category:	B
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Parties:	DKG SJB AJB
Catchwords:	Practice and procedure At trial appellant in hospital following alleged chest pains Finding by primary judge that chest pains concocted to delay trial Whether failure to adjourn trial constituted denial of procedural fairness Family law Child-related proceedings Family Court Act 1997 (WA), s 66C Whether primary judge erred in reducing time appellant entitled to spend with child Turns on own facts
Legislation:	Family Court Act 1997 (WA), s 66C
Case References:	Ex parte Bone; Robins and the Shire of Greenough [1990] WAR 94 Harris & Hadfield [2014] FamCAFC 41 House v The King [1936] HCA 40; (1936) 55 CLR 499 Sullivan v Department of Transport (1978) 1 ALD 383 Talbot & Talbot [2015] FamCAFC 132 Taylor v Taylor [1979] HCA 30; (1979) 143 CLR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DKG -v- SJB [2016] WASCA 149 CORAM : NEWNES JA

MURPHY JA

MITCHELL JA

HEARD : 23 MAY 2016 DELIVERED : 26 AUGUST 2016 FILE NO/S : CACV 49 of 2015 BETWEEN : DKG

Appellant

AND

SJB

First Respondent

AJB

Second Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : MONCRIEFF J

Citation : DKG and SJB [2015] FCWA 8

File No : PTW 1136 of 2007

Catchwords:

Practice and procedure - At trial appellant in hospital following alleged chest pains - Finding by primary judge that chest pains concocted to delay trial - Whether failure to adjourn trial constituted denial of procedural fairness

Family law - Child-related proceedings - Family Court Act 1997 (WA), s 66C - Whether primary judge erred in reducing time appellant entitled to spend with child - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 66C

Result:

Extension of time within which to appeal refused

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr D J Garnsworthy

First Respondent : In person

Second Respondent : Mr S Jones

Independent Children's Lawyer : Ms R L Cohen

Solicitors:

Appellant : In person

First Respondent : In person

Second Respondent : Clement & Co

Independent Children's Lawyer : Legal Aid (WA)

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

Ex parte Bone; Robins and the Shire of Greenough [1990] WAR 94
Harris & Hadfield [2014] FamCAFC 41
House v The King [1936] HCA 40; (1936) 55 CLR 499
Sullivan v Department of Transport (1978) 1 ALD 383
Talbot & Talbot [2015] FamCAFC 132
Taylor v Taylor [1979] HCA 30; (1979) 143 CLR 1

1 JUDGMENT OF THE COURT: This is an appeal from a decision of Moncrieff…

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 DKG v SJB

Details

AGLC: DKG v SJB [2016] WASCA 149
Case: [2016] WASCA 149
Decision Date: 26 AUGUST 2016

CaseChat Overview and Summary

The case of DKG v SJB involved a dispute between two parties, DKG and SJB, in the Family Court of Australia. The matter concerned a reduction in the time DKG was allowed to spend with his child, following allegations that DKG had fabricated chest pains in order to delay the trial. DKG, the appellant, sought to appeal the primary judge's decision, arguing that the failure to adjourn the trial due to his alleged chest pains constituted a denial of procedural fairness. Additionally, DKG contended that the primary judge had erred in reducing the time he was entitled to spend with his child.

The legal issues before the court included whether the primary judge had correctly exercised his discretion in finding that DKG had concocted his chest pains and whether the refusal to adjourn the trial amounted to a denial of procedural fairness. Furthermore, the court had to consider whether the primary judge's decision to reduce the time DKG was entitled to spend with his child was erroneous, in light of the specific facts of the case.

The court found that the primary judge had properly exercised his discretion in determining that DKG had fabricated his chest pains, and that this did not constitute a denial of procedural fairness. The court further held that the primary judge had not erred in reducing the time DKG was entitled to spend with his child, as the decision was based on the facts of the case and the best interests of the child. Consequently, the appeal was dismissed, and the extension of time within which to appeal was refused.

In conclusion, the court upheld the primary judge's findings and decisions, dismissing the appeal and refusing the extension of time within which to appeal.

Orders

Orders of the court

Extension of time within which to appeal refused

Appeal dismissed

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

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