K -v- B
[2006] WASCA 166
•4 AUGUST 2006
K -v- B [2006] WASCA 166
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 166 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:147/2005 | 4 AUGUST 2006 | |
| Coram: | WHEELER JA PULLIN JA | 4/08/06 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| B | |||
| PDF Version |
| Parties: | K B |
Catchwords: | Turns on own facts |
Legislation: | Nil |
Case References: | X v S [2005] FLC 93-208 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : K -v- B [2006] WASCA 166 CORAM : WHEELER JA
- PULLIN JA
- Appellant
AND
B
Respondent
ON APPEAL FROM:
Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA
Coram : PENNY J
File No : PTW 3311 of 2000
Catchwords:
Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Appeal allowed
Category: B
Representation:
Counsel:
Appellant : Mr M D Cole
Respondent : Mr R Hooper
Solicitors:
Appellant : Terrace Law
Respondent : Shaddicks Lawyers
Case(s) referred to in judgment(s):
X v S [2005] FLC 93-208
Case(s) also cited:
Nil
(Page 3)
1 WHEELER JA: The appeal arises out of proceedings in the Family Court of Western Australia. The matter had previously been the subject of a trial in that court before Holden CJ on 3 September 2003. His Honour then made orders giving residence of the child in question to the appellant with the respondent having specified contact.
2 It appears that there was some continuing conflict between the parties, particularly in relation to the appellant mother's alleged refusal - or hindering - of contact, on a variety of occasions. As a result, in February 2004, the respondent filed his application seeking residence of the child. The appellant filed a response and certain affidavits, but failed to file documents required for the trial or to attend the pre-trial conference.
3 The matter was first listed for trial on 12 July 2004, but did not proceed on that date, as it appeared that neither of the parties had received formal notification of the trial date.
4 At the rescheduled trial on 4 October 2004, the appellant arrived late, during the course of cross-examination of the respondent by the child representative. The appellant advised the Court that she was late because her children were ill. Her Honour the learned trial Judge then said to the appellant:
"I have given leave for them to proceed on an undefended basis, that is, you won't be able to take any part in the proceedings because you haven't filed any documents. You didn't come to the conference and I have decided that I'll just hear their side of the story so at the moment Ms Taylor is asking some questions. You can listen to what is happening."
5 It is possible that in her limited participation in the fresh trial proceedings to that date, the appellant may have been somewhat encouraged by the comments of the Judge before whom the fresh trial had first been listed. The appellant had appeared on that occasion, and his Honour had made strong comments to the effect that he was irritated by parties coming back to Court shortly after matters had been determined, and that it was up to the parties in this case to behave in a mature way and to resolve their differences.
6 The Family Court of Western Australia has an obligation to afford procedural fairness to a party, even a party who chooses not to appear. See, for example X v S [2005] FLC 93-208. In the present case, it appears the appellant was not invited to explain why she had failed to file any
(Page 4)
- relevant trial documents, or to indicate whether or not she had any evidence or any submissions that she would wish to place before the Court. That is of particular significance in this case since, immediately prior to the commencement of the hearing, the Court appointed expert had recommended that the child continue to reside with the appellant, with the matter to be reassessed in nine months. The child representative's position appeared, so far as one can discern, to be similar. However, at trial, the child representative expressed the view that in the light of the materials to that date, "My view now is that there should be a trial of the child living with his father".
7 On the face of the papers then, it appears that the appellant has been denied procedural fairness. If this appeal had proceeded to hearing, it may well have been necessary to go on and consider the question whether there was anything of relevance which the appellant could have put before the Court, had she been given the opportunity to do so. Nothing material appears on the papers before us.
8 However, having read the transcript of the hearing of the stay application in relation to this matter before Pullin JA on 19 May this year, I observe that the respondent concedes that the order as to the child's residence made by her Honour the learned trial Judge was, in any event, an interim order which is able to be reviewed, so that it is still open for the Family Court of Western Australia to reconsider the question of the child's residence. Indeed, before Pullin JA, Senior Counsel for the respondent went so far as to suggest that the omission from the orders made by her Honour of any programming of future review may well have been an unintentional slip. It is not necessary to resolve that issue.
9 Given that the matter can be reviewed by the Family Court of Western Australia in any event, it is appropriate that the matter be returned to that Court. Given that it appears that the appellant was denied procedural fairness at the earlier hearing, it is desirable that the review take the form of a rehearing and that the rehearing be before a Judge other than the learned trial Judge. For those reasons I would make the orders the subject of a consent minute of 21 July.
10 PULLIN JA: I agree.
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0
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