JRJ -v- YN [2017] WASCA 2

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASCA 2
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:125/2016	Heard:	20 DECEMBER 2016
Coram:	BUSS P NEWNES JA	Delivered:	10/01/17
No of pages:	6	Judgment Part:	1 of 1
Result:	Application for stay dismissed
Category:	B
PDF Version

Parties:	JRJ YN
Catchwords:	Practice and procedure Order of Family Court permitting infant son to travel overseas with mother Ex parte application for stay of order Whether primary judge erred in exercise of discretion Turns on own facts
Legislation:	Nil
Case References:	House v The King [1936] HCA 40; (1936) 55 CLR 499 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : JRJ -v- YN [2017] WASCA 2 CORAM : BUSS P

NEWNES JA

HEARD : 20 DECEMBER 2016 DELIVERED : 10 JANUARY 2017 FILE NO/S : CACV 125 of 2016 BETWEEN : JRJ

Appellant

AND

Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : JUSTICE MONCRIEFF

File No : PTW 1041 of 2015

Catchwords:

Practice and procedure - Order of Family Court permitting infant son to travel overseas with mother - Ex parte application for stay of order - Whether primary judge erred in exercise of discretion - Turns on own facts

Legislation:

Nil

Result:

Application for stay dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : No appearance

Solicitors:

Appellant : In person

Respondent : No appearance

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

House v The King [1936] HCA 40; (1936) 55 CLR 499
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

1 REASONS OF THE COURT: On 20 December 2016, we dismissed an urgent ex parte application by the appellant for a stay of an order of Moncrieff J in the Family Court of Western Australia suspending, for a limited time, the operation of an ex parte injunction previously granted by a registrar.

2 We said we would provide reasons for our decision. These are the reasons.

3 The material before us revealed limited information about the background to the dispute. That, no doubt, was due to the urgency of the application for a stay and the fact that the appellant was without legal representation. However, as it appears from the relevant affidavits filed in the Family Court, the position is as follows.

4 The respondent and the appellant were in a de facto relationship between January 2010 and December 2014. There was one child of the relationship, KM. Following the parties' separation, KM lived with the respondent. The appellant ordinarily resides in Sydney and spends time with KM when the appellant is in Perth.

5 On 25 February 2016, consent parenting orders were made by the Family Court. They included an order in the following terms:

Travel

Full consent from [the appellant] for [KM] to travel overseas or interstate on holiday with [the…

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.

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Details

Case: [2017] WASCA 2
Decision Date: 10 JANUARY 2017

CaseChat Overview and Summary

The proceedings in JRJ v YN concerned an application by the father, JRJ, to stay an order of the Family Court permitting his infant son to travel overseas with the mother, YN. The father applied ex parte for a stay of the Family Court order, which the primary judge dismissed. The father appealed against the primary judge’s decision, contending that the primary judge had erred in exercising the discretion to stay the order.

The primary legal issue was whether the primary judge erred in refusing to stay the Family Court order. This involved assessing the exercise of discretion by the primary judge and whether that discretion was properly applied to the facts of the case. The father argued that there were substantial grounds for believing that the primary judge had erred, which included the assertion that the primary judge had not properly considered all relevant factors in making the decision.

The court examined the exercise of discretion by the primary judge and considered whether the decision was based on a sound appreciation of all relevant factors. The court found that the primary judge had appropriately exercised the discretion, taking into account the best interests of the child, the reasons for the proposed travel, and other relevant factors. The court was satisfied that the primary judge’s decision was not erroneous and that the exercise of discretion was properly applied to the facts of the case. As a result, the appeal was dismissed, and the application for a stay was refused.

Orders

Orders of the court

Application for stay 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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