M v W

Case [2022] WASCA 169 8 December 2022

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   M -v- W [2022] WASCA 169
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   8 DECEMBER 2022
DELIVERED          :   8 DECEMBER 2022
PUBLISHED           :   14 DECEMBER 2022
FILE NO/S:   CACV 122 of 2022
BETWEEN:   M
Appellant
AND
W
Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   SUTHERLAND CJ
Citation: [W] and [M] [2022] FCWA 239
File Number            :   PTW 2057 of 2020

Catchwords:

Family law - Practice and procedure - Interim order - Application for stay - Application for injunction restraining removal of child from Australia - Where primary judge had granted parenting orders in favour of respondent, including permitting respondent to have sole parental responsibility and relocate to United States of America - Appellant had not established it was in the interests of justice to grant a stay and injunction - Whether in the interests of justice to issue a subpoena - Turns on own facts

Legislation:

Nil

Result:

Application for stay dismissed
Application for injunction dismissed
Application for leave to issue subpoena dismissed

Category: B

Representation:

Counsel:

Appellant	:	R S Ingleby
Respondent	:	No appearance

Solicitors:

Appellant	:	GG Legal
Respondent	:	In person

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

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Joyce v Anderson [2020] WASCA 48
Lee v Lee [2019] HCA 28; (2019) 266 CLR 129
M v W [2022] FCWA 239
Mercanti v Mercanti [2015] WASCA 206
Mills v Mills [1938] HCA 4; (1938) 60 CLR 150
Shephard v Galea [2020] WASCA 152
Woodley v Woodley [2018] WASCA 149
X v Y [2015] WASCA 70

REASONS OF THE COURT:

On 8 December 2022, we heard an application by the appellant in this appeal. The respondent did not attend or appear by solicitors or counsel at the hearing. The primary issues for consideration were whether the appellant should be granted a stay of the primary court's orders and an injunction pending the determination of the appeal. Other issues included whether the appellant should be given leave to issue a subpoena. We made the orders referred to in [27] below and said we would provide reasons. These are our reasons.

Background

The appeal concerns a decision of Sutherland CJ of the Family Court of Western Australia in relation to parenting orders. The primary judge determined that it was in the best interests of the child of the appellant (the father) and the respondent (the mother) to continue to reside with the mother, and that the mother be permitted to relocate with the child to the United States of America (USA), where they would live with the mother's family. The child is 3 years of age.
Her Honour published detailed reasons for judgment on 10 November 2022, which explained the difficult history of the parties' relationship with each other and had regard to a variety of considerations in determining where the best interests…

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 M v W

Details

AGLC: M v W [2022] WASCA 169
Case: [2022] WASCA 169
Decision Date

CaseChat Overview and Summary

This case concerns an appeal brought by M, the father, against a decision of the Family Court of Western Australia that permitted W, the mother, to relocate with their three-year-old child to the United States of America. The father sought a stay of the primary court's orders and an injunction preventing the mother from removing the child from Australia, as well as leave to issue a subpoena to the Chief Commissioner of Western Australia Police. The father also sought substituted service of the appeal notice on the mother's lawyers.

The primary judge found that it was in the best interests of the child to continue residing with the mother, who was granted sole parental responsibility and permission to relocate to the USA. The father argued that it was in the interests of justice to grant a stay and injunction due to the mother's failure to respond to his requests for information regarding the child's departure. However, the Court of Appeal was not persuaded that the appeal would be rendered nugatory if a stay and injunction were not granted. The court also had doubts about the proposed grounds of appeal having reasonable prospects of success, as they seemed to allege 'weighting' errors rather than errors of fact or law.

Furthermore, the court found that the mother's non-compliance with the father's requests did not necessarily indicate a disregard for court orders, as she had generally complied with them during the proceedings. The Court of Appeal also dismissed the father's application for leave to issue a subpoena, as it was premature to consider this aspect of the application in the absence of finalised grounds of appeal directed expressly to any alleged error in the primary judge's reasons for dismissing the father's application before the primary judge.

Orders:

1. Service of the appeal notice may be effected by sending a copy of the appeal notice together with a copy of these orders to [Meillon & Bright] and to the respondent's email address.
2. The appellant must serve the appeal notice either personally or in the manner provided for in order 1 of these orders by 4.00 pm on 9 December 2022.
3. By 4.00 pm on 13 December 2022, the appellant must file an affidavit deposing to service of the appeal notice and these orders.
4. By 4.00 pm on 16 January 2023, the appellant must file, and if a notice of respondent's intention has been filed, serve his appellant's case.
5. The appellant's application for a stay and injunctive orders and for leave to issue a subpoena to the Chief Commissioner of the WA Police is dismissed.
6. The costs of the appellant's application in an appeal filed on 6 December 2022 are reserved.

Orders