KSL -v- JGK [2014] WASCA 34

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASCA 34
Court:	THE COURT OF APPEAL (WA)	Published:	10/02/2014
Case No:	CACV:146/2013	Heard:	6 JANUARY 2014
Coram:	PULLIN JA	Delivered:	6/01/14
No of pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
PDF Version

Parties:	KSL JGK
Catchwords:	Application for stay of orders of Family Court of Western Australia Principles governing application for a stay Whether proposed grounds of appeal have reasonable prospect of succeeding Turns on own facts
Legislation:	Nil
Case References:	Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Weinert v Clark [2006] WASCA 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KSL -v- JGK [2014] WASCA 34 CORAM : PULLIN JA HEARD : 6 JANUARY 2014 DELIVERED : 6 JANUARY 2014 PUBLISHED : 10 FEBRUARY 2014 FILE NO/S : CACV 146 of 2013 BETWEEN : KSL

Appellant

AND

JGK

Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : THACKRAY CJ

File No : PTW 2931 of 2010

Catchwords:

Application for stay of orders of Family Court of Western Australia - Principles governing application for a stay - Whether proposed grounds of appeal have reasonable prospect of succeeding - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : Ms G A Archer SC

Solicitors:

Appellant : In person

Respondent : Lawton Gillon

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Weinert v Clark [2006] WASCA 253

PULLIN JA

(This judgment was delivered extemporaneously on 6 January 2014 and has been edited from the transcript.)

1 The appellant applies for a stay of an order made by Thackray CJ on 20 December 2013. The order was, in effect, that the respondent arrange for the child of the parties to receive childhood vaccinations and/or inoculations recommended by a named medical practitioner. The application for the order was made on 11 September 2013. It was supported by an affidavit of the respondent which stated, among other things:

[T]he mother and I have … conferred by email in order to achieve a joint parenting resolution as to whether our son … should complete his immunisation schedule … The mother has refused her consent to [him] being vaccinated … and refuses to discuss the matter further. In these circumstances, further conferral is unlikely to resolve the issue.

2 There was also exhibited to that affidavit a report dated 17 June 2013 by a named general practitioner. It read:

I do note that this young man has not been correctly vaccinated with the accepted schedule recommended in this State. He is therefore potentially prone to various illnesses and harbouring illnesses that could affect other children and certainly his unborn sibling. In this day and age this situation poses an unacceptable…

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: [2014] WASCA 34
Decision Date: 10 FEBRUARY 2014

CaseChat Overview and Summary

The case of KSL v JGK involved an application by KSL to stay the orders of the Family Court of Western Australia. KSL sought to delay the implementation of certain family law decisions until the outcome of an appeal was determined. The primary legal issue before the court was whether KSL's proposed grounds of appeal had a reasonable prospect of succeeding. This determination was crucial as it would dictate whether a stay should be granted, thereby delaying the enforcement of the family court's orders.

The court considered the principles governing applications for a stay of orders, which require a balance between the interests of justice and the need to enforce the original court's decisions. In assessing the likelihood of success for the proposed appeal, the court examined the merits of KSL's arguments and compared them to the findings of the Family Court. The court found that KSL's proposed grounds of appeal did not have a reasonable prospect of success based on the facts and the weight of evidence presented in the original proceedings. As a result, the application for a stay was dismissed.

Orders

Orders of the court

Application 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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