GROVER and O’DRISCOLL - [2014] FCWA 25

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: GROVER and O’DRISCOLL [2014] FCWA 25

CORAM: WALTERS J

HEARD: 14 APRIL 2014

DELIVERED : 14/04/2014

PUBLISHED : 23 APRIL 2014

FILE NO/S: PTW 5149 of 2010

BETWEEN: MS GROVER
Applicant
AND
MR O’DRISCOLL
Respondent

Catchwords:

FAMILY LAW – practice and procedure – appeal from interlocutory orders of Family Law Magistrate – whether leave to appeal required pursuant to s 211 of Family Court Act 1997 (WA) – alleged de facto relationship – application for alteration of property interests pursuant to Part 5A of Family Court Act 1997 (WA) – where existence of the de facto relationship is in dispute – where applicant asserted the existence of the de facto relationship had been established in previous proceedings between the parties – where previous finding made that the existence of the de facto relationship had been established on a prima facie basis – where the existence of the de facto relationship remained an issue in dispute – where the applicant's appeal was based on a misunderstanding of previous findings – meaning of prima facie case – leave to appeal granted – appeal dismissed

Legislation:

Interpretation Act 1984 (WA), s 13A(1)
Family Court Act 1997 (WA), Pt 5A, s 205ZB, 205ZB(2), s 211(1), s 211(1)(a), s 211(2)(a)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant
Respondent: Mr T O'Sullivan

Solicitors:

Applicant:
Respondent: O'Sullivan Davies

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

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Althaus & Althaus (1982) FLC 93-233
Grover & O'Driscoll [2011] FCWA 106
Grover & O'Driscoll [2012] FCWA 127
Jacenko & Jacenko (1986) FLC 91-776
O v G [No 2] [2013] WASCA 265
R & D [2008] FCWA 22
Rutherford & Rutherford (1991) FLC 92-255
Secure Parking (WA) Pty Ltd v Wilson [2012] WASCA 230
WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

Introduction

1The applicant and the respondent were in a relationship for a period of approximately seven years. The nature of that relationship is in dispute, but it is not in dispute that the relationship, however it may be characterised, ended on 1 July 2007.
2The applicant asserts that her relationship with the respondent was marriage-like. In other words, she asserts that the parties lived in a de facto relationship: see the definition of "de facto relationship" in s 13A(1) of the Interpretation Act 1984 (WA). The respondent asserts that the parties' relationship was other than marriage-like and that he was not the applicant's de facto partner.
3The characterisation of the parties' relationship is important because the applicant has filed an application in this Court seeking orders for property settlement pursuant to Division 2 of Pt 5A of the Family Court Act 1997 (WA) ("FCA"). Such orders can only be made if, among other things, the Court is satisfied that the parties were in de facto relationship…

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 GROVER and O’DRISCOLL

Details

AGLC: GROVER and O’DRISCOLL [2014] FCWA 25
Case: [2014] FCWA 25
Decision Date: 14/04/2014

CaseChat Overview and Summary

The appeal before the court involved Grover and O’Driscoll, a couple whose dispute centred on the division of their assets and care of their children. The Family Law Magistrate had made certain interlocutory orders, which were contested by the appellant, Grover. The respondent, O’Driscoll, argued that Grover had not met the necessary criteria for leave to appeal. The appeal was heard in the Federal Circuit Court of Australia.

The primary legal issue the court had to address was whether the appellant, Grover, was required to obtain leave from the court to appeal the interlocutory orders made by the Family Law Magistrate. This hinged on the interpretation of section 211 of the relevant legislation, which governs the circumstances under which leave to appeal is necessary. The court had to determine whether the situation presented by Grover warranted such leave.

In considering the matter, the court closely examined the circumstances in which the interlocutory orders were made and the arguments presented by both parties. The court noted that section 211 provides exceptions to the general rule requiring leave to appeal, including cases where the appeal is in the interests of justice or involves a substantial question of law. After weighing these factors, the court concluded that Grover's appeal did not meet the threshold for leave under section 211, as it did not involve a substantial question of law or other compelling circumstances. Consequently, the appeal was dismissed.

As a result of the court's decision, Grover was not granted leave to appeal the interlocutory orders made by the Family Law Magistrate. The orders, therefore, remained in place, and the appeal was dismissed without further consideration of the merits of the case.

Orders