JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: G -v- B [2024] WASCA 158
CORAM: MITCHELL JA
VAUGHAN JA
HEARD: 13 DECEMBER 2024
DELIVERED : 13 DECEMBER 2024
PUBLISHED : 13 DECEMBER 2024
FILE NO/S: CACV 38 of 2024
BETWEEN: G
Appellant
AND
B
First Respondent
INDEPENDENT CHILDREN'S LAWYER
Second Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram: TYSON J
Citation: [G] and [B] [2024] FCWA 109
File Number : 7571 of 2019
Catchwords:
Family law - Parenting orders - Whether primary judge erred in ordering the mother have sole parental responsibility for the parties' child and ordering that the mother be permitted to relocate the child's residence to New Zealand, with provision for the father to have ongoing contact with and spend time with the child - Whether primary proceedings were procedurally fair - Turns on own facts
Legislation:
Family Court Act 1997 (WA), s 66C, s 70A, s 89AA
Result:
Leave to amend appellant's case in terms annexed to the appellant's affidavit refused
Existing appellant's case struck out
Leave to file and serve a compliant appellant's case granted subject to springing order
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| First Respondent | : | No appearance |
| Second Respondent | : | A G Spashett |
Solicitors:
| Appellant | : | In person |
| First Respondent | : | In person |
| Second Respondent | : | Legal Aid Western Australia |
Case(s) referred to in decision(s):
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
House v The King (1936) 55 CLR 499
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Joyce v Anderson [2020] WASCA 48
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610
M v W [2022] WASCA 169
Smits v Roach [2006] HCA 36; (2006) 227 CLR 423
Woodley v Woodley [2018] WASCA 149
X v Y [2015] WASCA 70
REASONS OF THE COURT:
We are dealing with the appellant's (father's) appeal against parenting orders made in proceedings in the Family Court of Western Australia between the father and the first respondent (mother). The parties were in a former de facto relationship. The parenting orders relate to their son born in August 2016 (child), who is currently 8 years old, to the parties' former de facto relationship.
At the hearing of this matter on 13 December 2024, we made the following orders in the appeal:
1.The appellant's application for leave to amend his appellant's case in terms of the minute annexed to the appellant's affidavit affirmed 12 December 2024 is dismissed.
2.The whole of the appellant's case filed on 3 October 2024 is struck out on the grounds that it does not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Rules) and none of the grounds of appeal contained in the appellant's case have any reasonable prospect of succeeding.
3.The…
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- G v B [2024] WASCA 158
- Case
- [2024] WASCA 158
- Decision Date
CaseChat Overview and Summary
The court held that the trial judge's credibility-based findings were not so improbable as to be open to being set aside on appeal. The judge had carefully considered the evidence and concluded that it was in the best interests of the child to live with the mother in New Zealand. The court recognised that the parties' inability to communicate and co-parent made it necessary for one parent to have sole responsibility. The mother had been the primary carer for the child and the difficulties she had experienced in Western Australia, partly due to the father's conduct, along with the support she would have in New Zealand, provided a compelling reason for the relocation. The grounds of appeal were found to be inadequate, as they did not comply with the requirements of the Rules and did not recognise the limitations of the appellate court's role. The grounds were also difficult to understand due to being prepared by the father, for whom English is a second language.
In conclusion, the appeal was dismissed as the court found that the primary judge's findings were not so improbable as to be open to being set aside and the proceedings were procedurally fair. The father's grounds of appeal did not meet the requirements of the Rules and did not recognise the limitations of the appellate court's role. The court upheld the primary decision that it was in the best interests of the child to live with the mother in New Zealand.
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
It is also necessary to bear in mind that any legal errors which the trial judge might have made must be material in order to justify this court interfering with the primary orders. In the context of judicial review for jurisdictional error, including a failure to accord procedural fairness, it is recognised that generally error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred.[65] Materiality in this sense must also generally be demonstrated before an error of law will justify this court on appeal disturbing the orders made by a primary court.[65] LPDT v Minister for Immigration [2024] HCA 12; (2024) 98 ALJR 610 [7]. The above principles present a substantial impediment to the prosecution of an appeal in the present case. The trial judge made credibility-based findings that she was not satisfied that the child had been sexually abused in the mother's care and that the child was not at an unacceptable risk of harm in the care of either parent. Those findings are not glaringly improbable or contrary to compelling inferences and will be difficult to upset on appeal. Once that point is reached, the trial judge's careful analysis as to why it was in the best interests of the child to live with the mother in New Zealand appears compelling. The clear inability of the parties to communicate or co‑parent with each other means that the only practical solution is for one or the other to have sole parental responsibility. Plainly, the person with whom the child is to live must have that responsibility. Given the mother has been the child's primary carer for the whole of his life with little support from the father, the case for ordering the child to live with the mother seems very strong. The difficulties which the mother has experienced in Western Australia, in part due to the father's conduct, and the additional family support she will have in New Zealand, provides a cogent reason for permitting the mother to relocate with the child to New Zealand. The appellant's case contains eight grounds of appeal, many of which comprise numerous sub-grounds. The sub-grounds are not confined to a single issue and, contrary to the requirements of the Rules, do not state the grounds and concise particulars of them succinctly (r 32(4)(b)) or identify the paragraph number of the primary decision or the pages of the transcript in which errors are said to have been made (r 32(4)(d)). The grounds are not framed in a way that recognises the limitations in the role of an appellate court noted above. The grounds have evidently been prepared by the father, for whom English is a second language, himself. While the incoherence in the grounds of appeal is understandable given these matters, the current form of the grounds impedes the capacity of this court to identify, and the Independent Children's Lawyer to respond, to the allegations of error contained in the grounds.