DKG v SJB

Case [2016] WASCA 149


DKG -v- SJB [2016] WASCA 149



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2016] WASCA 149
THE COURT OF APPEAL (WA)
Case No:CACV:49/201523 MAY 2016
Coram:NEWNES JA
MURPHY JA
MITCHELL JA
26/08/16
18Judgment Part:1 of 1
Result: Extension of time within which to appeal refused
Appeal dismissed
B
PDF Version
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…

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DKG v SJB [2016] WASCA 149
Case
[2016] WASCA 149
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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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