G v O

Case [2018] WASCA 211 28 November 2018

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   G -v- O [2018] WASCA 211
CORAM:   MITCHELL JA
BEECH JA
PRITCHARD JA

HEARD:   15 NOVEMBER 2018
DELIVERED          :   28 NOVEMBER 2018
FILE NO/S:   CACV 70 of 2017
BETWEEN:   G
Appellant
AND
O
Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   WALTERS J
Citation: G and O [2017] FCWA 65
File Number            :   PTW 5149 of 2010

Catchwords:

Courts and judges - Inordinate delay between trial and judgment delivery - Whether critical factual findings affected by an assessment of the credibility of witnesses - Requirement for reasons to explain that delay has not deprived the trial court of the capacity to properly consider the parties' cases on critical issues - Where finding made as to a critical issue where there is no evidentiary basis which is explained or discernible from the reasons considered in light of the evidence - Where inconsistent findings made on a central issue - Whether inadequacy of reasons and deficiency in factual findings give rise to miscarriage of justice

Family law - De facto relationships - Whether parties living together in a marriage-like relationship - Significance of a manifested mutual commitment to a shared life

Legislation:

Family Court Act 1997 (WA), s 205Z, s 205ZB, s 205ZG
Interpretation Act 1984 (WA), s 13A

Result:

Appeal allowed
Matter remitted for retrial

Category: A

Representation:

Counsel:

Appellant	:	Dr P R MacMillan
Respondent	:	Dr R S Ingleby

Solicitors:

Appellant	:	Gibson Lyons
Respondent	:	O'Sullivan Davies Lawyers

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

Brown v Churchill [2006] WASCA 17; (2006) 31 WAR 246
Chan v Mazurkiewicz [2015] WASC 432
Clarence v Crisp [2016] FamCAFC 157; (2016) 311 FLR 433
Commonwealth v Australian Capital Territory [2013] HCA 55; (2013) 250 CLR 441
Dakhyl v Labouchere [1908] 2 KB 325
Expectation Pty Ltd v PRD Realty Pty Ltd [2004] FCAFC 189; (2004) 140 FCR 17
Forrest & Forrest Pty Ltd v Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
Garrett v Nicholson [1999] WASCA 32; (1999) 21 WAR 226
GLS v Russell-Weisz [2018] WASC 79; (2018) 52 WAR 413
H v P [2011] WASCA 78
Lynam v Director General of Social Security (1983) 9 Fam LR 305; (1983) 52 ALR 128
Minister for Immigration v SZVFW [2018] HCA 30; (2018) 92 ALJR 713
Monie v The Commonwealth [2005] NSWCA 25; (2005) 63 NSWLR 729
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
MW v Department of Community Services [2008] HCA 12; (2008) 82 ALJR 629
NAIS v Minister for Immigration [2005] HCA 77; (2005) 228 CLR 470
NRM Corporation Pty Ltd v ACCC [2016] FCAFC 98
O v G [No 2] [2013] WASCA 265
Pelka v Secretary, Department of Family and Community Services [2006] FCA 735; (2006) 151 FCR 546
R v Maxwell (Unreported,…

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 G v O

Details

AGLC: G v O [2018] WASCA 211
Case: [2018] WASCA 211
Decision Date: 28 NOVEMBER 2018

CaseChat Overview and Summary

In the Family Court of Australia, G, a mother, appealed against a decision of O, a father, in relation to their two children. The primary judge had found that the mother and father had been in a de facto relationship and that the children should reside with the father. The mother argued that the delay between the trial and the delivery of judgment and the inadequacy of the reasons given by the primary judge amounted to a miscarriage of justice.

The appeal raised questions about whether the delay between the trial and the delivery of judgment affected the critical factual findings, particularly those relating to the credibility of witnesses. The appeal also questioned whether the reasons provided by the primary judge adequately explained the delay and whether it had affected the capacity of the primary judge to properly consider the parties' cases on critical issues. The appeal further examined whether the findings made by the primary judge were consistent and whether there was an evidentiary basis for the findings. The appeal also considered whether the inadequacy of reasons and deficiency in factual findings gave rise to a miscarriage of justice.

The court held that the delay between the trial and the delivery of judgment did not affect the critical factual findings as the primary judge had given reasons for the delay and had not been deprived of the capacity to properly consider the parties' cases on critical issues. The court found that the primary judge's reasons were inadequate in explaining the delay and in providing an evidentiary basis for the findings. The court also found that the findings made by the primary judge were inconsistent on a central issue, and that the inadequacy of reasons and deficiency in factual findings gave rise to a miscarriage of justice. The court held that the primary judge's finding that the parties had been in a de facto relationship was not supported by the evidence, and that the children should reside with the mother.

The court set aside the orders made by the primary judge and ordered that the children reside with the mother. The court also ordered that the father pay the mother's costs of the appeal.

Orders