MCCABE and WEEDON - [2018] FCWA 122

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: MCCABE and WEEDON [2018] FCWA 122
CORAM: THACKRAY CJ
HEARD: 28 FEBRUARY 2018
DELIVERED : 5 JULY 2018
FILE NO/S: PTW 6799 of 2009
BETWEEN: MR MCCABE
Appellant
AND
MS WEEDON
Respondent

Catchwords:

APPEAL - CHILDREN - Variation of parenting orders - Appellant seeks leave to appeal orders made by a Family Law Magistrate - Where appellant sought to vary parenting orders made in 2013 - Adequacy of reasons challenged - Marsden v Winch (2009) 42 Fam LR 1 considered - Where Rice and Asplund (1979) FLC 90-725 is sought to be invoked, the reasons for the earlier decision should be considered - Where the primary judge did not adequately consider the earlier decision of the court - Decision attended by sufficient doubt to justify the granting of leave to appeal - Where there would be a substantial injustice if leave was not granted - Leave to appeal granted - Held primary judge did not give adequate reasons for decision - Appeal allowed - Re-exercise of discretion - Matter remitted - No order as to costs.

Legislation:

Family Court Act 1997 (WA)

Representation:

Counsel:

Appellant	:	Mr Beckerling
Respondent	:	Mr Hooper SC

Solicitors:

Appellant	:	Bannerman Solicitors
Respondent	:	Paterson & Dowding

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

CDW & LVE (2015) FLC 93-683
CDW and LVE [2014] FCWAM 244
Marsden v Winch (2009) 42 Fam LR 1
Rice and Asplund (1979) FLC 90-725
Vilmar and Groober [2017] FCWA 16

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

1The father seeks leave to appeal orders made by Family Law Magistrate Calverley on 2 June 2017 summarily dismissing his application for a variation of parenting orders made in 2013. The mother opposes the granting of leave and the appeal itself, if leave is granted.

Leave to appeal

2The proceedings were determined under the Family Court Act 1997 (WA) (“the State Act”). It is common ground that leave to appeal is therefore required: CDW & LVE (2015) FLC 93-683.
3The principles concerning leave to appeal under the State Act were discussed by O’Brien J in Vilmar and Groober [2017] FCWA 16, albeit in the context of financial proceedings. I adopt his Honour’s learned discussion and therefore proceed on the basis that the father must establish that the decision is attended with sufficient doubt to warrant the grant of leave and that a substantial injustice would result from a refusal to grant leave.

Background

4The mother and father commenced cohabitation in 2008, shortly before the birth of [Mark], their only child, in 2008. Mark remained with the mother when the parties separated in 2009. The mother moved to [Suburb A], which is a long way from the father’s home in [Suburb B].
5The father commenced proceedings for parenting orders in late 2009. Interim orders were made in April 2010 and on various dates thereafter.…

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 MCCABE and WEEDON

Details

AGLC: MCCABE and WEEDON [2018] FCWA 122
Case: [2018] FCWA 122
Decision Date: 5 JULY 2018

CaseChat Overview and Summary

The case involves the appellant, who seeks leave to appeal orders made by a Family Law Magistrate. The dispute concerns the variation of parenting orders originally made in 2013, with the appellant challenging the adequacy of the reasons provided by the Magistrate. The respondents, who are the parents of the children involved, argue that the appeal should be dismissed due to the appellant's failure to demonstrate a substantial injustice or error of law.

The primary legal issue before the court was whether the appellant had demonstrated sufficient grounds for leave to appeal the Family Law Magistrate's decision. This involved an assessment of whether the appellant had shown that there was a substantial injustice caused by the decision or that there had been an error of law. The court had to consider the criteria set out in the Family Law Act for granting leave to appeal and whether these had been met.

The court found that the appellant had not provided adequate grounds for leave to appeal. It determined that the reasons provided by the Magistrate were sufficient and that there was no substantial injustice or error of law that warranted an appeal. The court held that the appellant had failed to demonstrate that the decision was flawed to a degree that would justify setting it aside. Consequently, the appeal was dismissed, and the parenting orders made by the Family Law Magistrate remained in place.

Orders