MTI v SUL [No 2]

Case [2010] WASCA 58


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MTI -v- SUL [No 2] [2010] WASCA 58

CORAM:   PULLIN JA

BUSS JA
NEWNES JA

HEARD:   10 DECEMBER 2009

DELIVERED          :   31 MARCH 2010

FILE NO/S:   CACV 83 of 2008

BETWEEN:   MTI

Appellant

AND

SUL
Respondent

ON APPEAL FROM:

Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA

Coram  :MARTIN J

File No  :PT 1025 of 2004

Catchwords:

Practice and procedure - Order of Family Court that appellant had to obtain leave to bring further proceedings - Application by appellant for leave to seek variation of existing parenting orders - Appellant failed to attend directions hearing - Application dismissed at directions hearing on ground that appellant no longer wished to proceed with it - Whether appellant denied procedural fairness

Legislation:

Nil

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     No appearance

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

Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945

Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383

Dixon v The Commonwealth (1981) 61 ALR 173

I v L [2006] FCWA 141

International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 261 ALR 220

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

MTI v SUL [2007] WASCA 240

MTI v SUL [2008] WASCA 261

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

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100; (1991) 102 ALR 339

  1. PULLIN JA:  I agree with Newnes JA.

  2. BUSS JA:  I agree with Newnes JA.

  3. NEWNES JA:  This is an appeal against a decision of the Family Court of Western Australia dismissing the appellant's application for leave to seek various parenting and other orders.  The appellant is the father and the respondent is the mother of the child the subject of the proceedings.  The respondent has taken no part in this appeal.  The appellant is acting in person.

Background

  1. The parties met in October 2001 and commenced living together in February 2003.  They were married in an Islamic ceremony in August 2003.  They separated on 7 February 2004.  On 26 March 2004, a child of the relationship was born.  The child currently resides with the respondent in Western Australia and has contact with the appellant at designated times.

  2. Since the parties' separation, the appellant has filed a large number of applications in the Family Court, principally in relation to access and matters concerning the child's day‑to‑day care and accommodation.  The appellant has been self‑represented throughout.  The appellant has also instituted a number of appeals to this court against decisions relating to those applications.

  3. It is unnecessary for present purposes to set out the history of those proceedings.  It is sufficient to note that both the respondent and the appellant…

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MTI v SUL [No 2] [2010] WASCA 58
Case
[2010] WASCA 58
Decision Date

CaseChat Overview and Summary

The appeal was brought by the appellant against the decision of the Family Court of Western Australia to dismiss their application to seek leave to vary existing parenting orders. The appellant failed to attend a directions hearing, and the court dismissed the application on the ground that the appellant no longer wished to proceed with it. The appellant argued that they were denied procedural fairness as they were not given the opportunity to be heard on whether the application should be dismissed. The appeal was heard by the Full Court of the Family Court of Western Australia.

The court was required to decide whether the appellant was denied procedural fairness by the primary judge's decision to dismiss the application without giving the appellant an adequate opportunity to be heard. The court also needed to consider whether the appellant was entitled to seek a variation of the orders previously made by the primary judge so long as they first obtained the leave of the court. Furthermore, the court needed to determine if there was any basis for the order sought by the appellant that the applications should be heard by a different judge.

The court found that the appellant was entitled to seek a variation of the orders previously made by the primary judge so long as they first obtained the leave of the court. The appellant having properly brought applications for such leave, in the respectful view of the court, it was not open to the primary judge to dismiss those applications without giving the appellant an adequate opportunity to be heard on whether they should be dismissed. The court found that the appellant was denied procedural fairness as they were not given the opportunity to be heard on whether the application should be dismissed. The court allowed the appeal on the first ground of appeal, set aside the orders of the primary judge dismissing the appellant's applications, and remitted the applications to the Family Court of Western Australia for further hearing. The court dismissed the other grounds of appeal as they were not proper grounds of appeal and, in any event, in view of the decision on the first ground, it was unnecessary to consider them.

The court made the following orders: (1) allow the appeal on the first ground of appeal; (2) set aside the orders of the primary judge dismissing the appellant's applications; (3) remit the applications to the Family Court of Western Australia for further hearing; and (4) otherwise dismiss the appeal.

Orders

Orders of the court

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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

It is not, in my view, to the point that the material relied upon by the primary judge emanated from the appellant. As Gummow J pointed out in Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100; (1991) 102 ALR 339, 359, procedural fairness may require the applicant to have the opportunity to deal with matters adverse to the applicant's interests which the decision‑maker proposes to take into account, even if the source of concern by the decision‑maker is not information or materials provided by another party, but what is seen to be the conduct of the applicant. In this case, while the appellant was plainly aware of the existence of the material in question, he was not aware of the use to which it might be put or the interpretation that might be put upon it. He had no opportunity to deal with the conclusion that the primary judge drew from it. And the conclusion that the appellant did not intend to pursue the applications was by no means obvious from the material before the court. Indeed, with respect, I do not understand it in the way in which the primary judge apparently understood it. As I understand the import of that correspondence, the appellant wished the applications to be held in abeyance only until concerns he had about the judge were resolved and a new independent child solicitor and a new child expert were appointed. I do not understand the appellant to be suggesting in that correspondence, or otherwise, that he wished to abandon the applications. It is not in doubt that the appellant was entitled to seek a variation of the orders previously made by the primary judge so long as he first obtained the leave of the court. The appellant having properly brought applications for such leave, in my respectful view it was not open to the primary judge to dismiss those applications without giving the appellant an adequate opportunity to be heard on whether they should be dismissed. That did not occur. It is not to the point that it may be open to the appellant to start again and make fresh applications for the same relief. I would allow the first ground of appeal and set aside the orders dismissing the applications. The applications should be remitted to the Family Court for further hearing. On the material before this court, there is no basis for the order sought by the appellant that the applications should be heard by a different judge. Ground 2 of the grounds of appeal appears to be simply an element of ground 1 and does not itself arise separately for determination. I would dismiss this ground. The other grounds are not proper grounds of appeal and, in any event, in view of the decision I have reached on the first ground it is unnecessary to consider them. I would dismiss those grounds. I should note, however, that nothing that has been put before this court provides any foundation at all for those complaints. I would:(1)allow the appeal on the first ground of appeal;(2)set aside the orders of the primary judge dismissing the appellant's applications;(3)remit the applications to the Family Court of Western Australia for further hearing; and(4)otherwise dismiss the appeal.