JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: J -v- J [2011] WASCA 126
CORAM: PULLIN JA
BUSS JA
HALL J
HEARD: 16 MARCH 2011
DELIVERED : 8 JUNE 2011
FILE NO/S: CACV 44 of 2010
BETWEEN: J
Appellant
AND
J
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram :MARTIN J
Citation :[J] and [J] [2010] FCWA 44
File No :PTW 1430 of 1999
Catchwords:
Family law - Application to vary parenting order - Supervised contact between father and child - Whether primary judge made any errors of fact or law in making the variation to the parenting order and refusing to make other variations - Turns on own facts
Legislation:
Family Court of Western Australia Act 1997 (WA)
Result:
Application for an extension of time to appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr R I M Bannerman
Solicitors:
Appellant: In person
Respondent: Bannerman Solicitors
Case(s) referred to in judgment(s):
[J] and [J] [2006] FCWA 52
[J] and [J] [2010] FCWA 44
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gronow v Gronow [1979] HCA 63; (1979) 144 CLR 513
House v The King [1936] HCA 40; (1936) 55 CLR 499
In the Marriage of Marsden and Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
In the Marriage of Rice and Asplund (1978) 6 Fam LR 570; (1979) FLC 90‑725
In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149
Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
PULLIN JA: I agree with Buss JA.
BUSS JA: The appellant has applied to this court for an extension of time to appeal against a decision of Martin J made in the Family Court of Western Australia (the Family Court).
The appellant is the father and the respondent is the mother of a girl, S, born on 4 May 1999.
The decision in question related to competing applications by the appellant and the respondent for a variation of parenting orders concerning S that were made by her Honour on 28 October 2004, after a 10‑day hearing.
The primary judge heard the competing applications on 9 March 2010. On 9 April 2010, her Honour made new parenting orders and published reasons for making the new orders. See [J] and [J] [2010] FCWA 44.
The application for an extension of time to appeal
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- J v J [2011] WASCA 126
- Case
- [2011] WASCA 126
- Decision Date
CaseChat Overview and Summary
The primary judge had to determine whether there were any procedural errors in the way the case was handled and whether the variation to the parenting order was justified. The father argued that he was denied procedural fairness, as he was not given an opportunity to adequately present his case and cross-examine the mother in person. The court had to assess whether the father's arguments were substantiated and whether the primary judge's approach was fair and reasonable.
The appeal was dismissed. The court found that the father's complaints about procedural fairness were without merit, as he had ample opportunity to present his case and was not subjected to any practical injustice. The court emphasised that procedural fairness is a flexible concept and is concerned with avoiding practical injustice. In this case, the primary judge had given the father an adequate opportunity to present his case, and there was no evidence that the father suffered any prejudice as a result of the proceedings.
The court did not order any variation to the parenting order, as it was satisfied that the primary judge's decision was just and reasonable in all the circumstances. The appeal was dismissed, and the order of the primary judge was upheld.
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
Fairness is essentially a practical concept. It is not abstract in nature. The law of procedural fairness is concerned to avoid practical injustice. See Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37] (Gleeson CJ). The requirements of procedural fairness are flexible. Proceedings where procedural fairness must be accorded may be organised to ensure fairness having regard to the nature and circumstances of the particular proceeding, including the relevant facts, the statutory context, the matters in dispute, the circumstances of the particular parties whose interests may be affected, and the legal representation of parties before the relevant body or tribunal. See Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [56] (Buss JA). In my opinion, there is no merit in the appellant's complaints about procedural fairness. There is nothing of substance in the allegation as to 'normal case resolution practice' or 'Case Management Guidelines'. The appellant did not object to the practice and procedure adopted by the primary judge in hearing the competing applications. The appellant did not suffer any practical injustice from the form or substance of the practice and procedure followed by her Honour. The appellant's contention that he did not 'have the opportunity to adequately present his case, present supporting evidence and test the evidence provided and cross‑examine in person [the respondent]' is without merit. The appellant relied on affidavit material he had filed and also on his sworn oral evidence at the hearing on 9 March 2010. The appellant and the respondent gave oral evidence and were cross‑examined. None of the experts nor the family consultant was called as a witness. The appellant did not apply to cross‑examine any of them. He did not request an adjournment or an additional hearing date. The primary judge gave the appellant an adequate opportunity to make oral submissions on 9 March 2010. Further, towards the end of the hearing on 9 March 2010, her Honour gave the appellant permission to make supplementary written submissions. The appellant was content. This is apparent from the following interaction between her Honour and the appellant:HER HONOUR: Anyway, it doesn't really matter. Look, I'm sorry, [the appellant]. I have to ask you to put something into print.[THE APPELLANT]: Okay. No worries.HER HONOUR: Can you do it in the next seven days?[THE APPELLANT]: Yes, I will do.HER HONOUR: No more than two pages.[THE APPELLANT]: Your Honour ‑ ‑ ‑ HER HONOUR: Three pages.[THE APPELLANT]: Aerial 10 font?HER HONOUR: I don't know.TAYLOR, MS: It's tiny.HER HONOUR: We've been there before. But I really don't care because I just don't want you to think you've been cut off in your prime, so to speak.[THE APPELLANT]: I understand that.HER HONOUR: And of course the others have to have a copy of that. If you two want to raise anything, you're welcome. I'm going to give judgment in a month's time. I have in mind Wednesday, 7 April.[THE APPELLANT]: Okay (ts 65 ‑ 66).