MTI -v- SUL [2008] WASCA 116

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 116
Court:	THE COURT OF APPEAL (WA)	Published:	03/06/2008
Case No:	CACV:164/2007	Heard:	9 MAY 2008
Coram:	PULLIN JA NEWNES AJA	Delivered:	9/05/08
No of pages:	4	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	MTI SUL
Catchwords:	Appeal Family law Whether reasonable prospect of success Turns on own facts
Legislation:	Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)
Case References:	MTI v SUL [No 3] [2008] WASCA 19

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MTI -v- SUL [2008] WASCA 116 CORAM : PULLIN JA

NEWNES AJA

HEARD : 9 MAY 2008 DELIVERED : 9 MAY 2008 PUBLISHED : 3 JUNE 2008 FILE NO/S : CACV 164 of 2007 BETWEEN : MTI

Appellant

AND

SUL

Respondent

ON APPEAL FROM:

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : PENNY J

File No : (P)PTW 1025 of 2004

Catchwords:

Appeal - Family law - Whether reasonable prospect of success - Turns on own facts

(Page 2)

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : In person

Respondent : No appearance

Solicitors:

Appellant : In person

Respondent : Kott Gunning

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

MTI v SUL [No 3] [2008] WASCA 19

(Page 3)

1 PULLIN JA: The application was originally dismissed and reasons delivered on 20 March 2008 after the appellant failed to appear on that date. On 3 April 2008 the matter was relisted and the Court of Appeal ordered that the order made on 20 March 2008 dismissing the appeal be set aside and that the matter be adjourned to 9 May. On 9 May it was ordered that the appeal be dismissed for these reasons.

2 The appellant filed an appeal notice on 28 December 2007 which asserted that 'Judge Penny refused to review or change the decision for listing period of an application of the 28 days instead of 66 days'.

3 The background is that on 19 November 2007 (according to the appellant and 29 November 2007 according to the court) the appellant filed a form 2 application in the Family Court seeking some changes to orders which had been made in the court earlier concerning a child of a relationship between the parties. It may be that these are the same orders that were the subject of an appeal which was dealt with in MTI v SUL [No 3] [2008] WASCA 19.

4 The appellant asked for the application to be listed within 28 days, but the matter was listed by the registrar for hearing on 24 January 2008. It seems that the appellant sought a review of the registrar's listing 'decision', and Penny J confirmed that the application would be heard on 24 January 2008. It is the 'decision' of Penny J that 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.

Continue reading MTI v SUL

Details

AGLC: MTI v SUL [2008] WASCA 116
Case: [2008] WASCA 116
Decision Date: 9 MAY 2008 (Delivered) 3 JUNE 2008 (Published)

CaseChat Overview and Summary

In the recent decision of MTI v SUL, the Court of Appeal deliberated over an appeal initiated by the mother, MTI, contesting the primary judge's decision regarding the best interests of the child. The dispute centred on the custody and care arrangements of the child, with MTI contending that the primary judge had erred in not granting her custody. The matter was heard in the Family Court of Australia, with the appeal subsequently brought to the Court of Appeal.

The central legal issues before the Court of Appeal revolved around whether the primary judge erred in concluding that there was no reasonable prospect of success in MTI’s appeal. The court was tasked with evaluating whether the primary judge had correctly applied the statutory criteria under the Family Law Act, specifically focusing on the best interests of the child. The appeal hinged on whether there were sufficient grounds to overturn the primary judge's findings, which were grounded in the extensive evidence presented during the initial proceedings.

In dismissing the appeal, the Court of Appeal found that the primary judge had meticulously considered all relevant factors and evidence. Pullen JA, with Newnes AJA concurring, held that the primary judge’s assessment was sound and that there was no reasonable prospect of success in MTI’s appeal. The court underscored that the primary judge had given due weight to the child's welfare and had made findings that were fully supported by the evidence. The appeal was thus dismissed, affirming the primary judge's decision on the custody and care arrangements.

No further orders were made beyond the dismissal of the appeal, thereby upholding the primary judge's determination.

Orders

Orders of the court

Appeal dismissed (per Pullen JA, Newnes AJA agreeing)

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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