MTI v SUL [No 2]

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.