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

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASCA 19
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:161/2006	Heard:	14 DECEMBER 2007
Coram:	STEYTLER P WHEELER JA	Delivered:	4/02/08
No of pages:	17	Judgment Part:	1 of 1
Result:	Appeals dismissed
Category:	B
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Parties:	MTI SUL
Catchwords:	Appeal Family law Whether reasonable prospect of success Costs Meaning of "suspended" Turns on own facts
Legislation:	Family Court Act 1997 (WA), s 66, s 66A, s 66B, s 66C, s 70A, s 89AA Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(f), (g)
Case References:	MTI v SUL [No 2] [2007] WASCA 240 Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MTI -v- SUL [No 3] [2008] WASCA 19 CORAM : STEYTLER P

WHEELER JA

HEARD : 14 DECEMBER 2007 DELIVERED : 5 FEBRUARY 2008 FILE NO/S : CACV 161 of 2006 BETWEEN : MTI

Appellant

AND

SUL

Respondent

FILE NO/S : CACV 76 of 2007

CACV 133 of 2007

BETWEEN : MTI

Appellant

AND

SUL

Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : PULLIN JA

Citation : MTI -v- SUL [No 2] [2007] WASCA 240

File No : CACV 161 of 2006

Jurisdiction : FAMILY COURT OF WESTERN AUSTRALIA

Coram : MARTIN J

Citation : MTI and SUL [2006] FCWA 141

File No : PT 1025 of 2004

Catchwords:

Appeal - Family law - Whether reasonable prospect of success - Costs - Meaning of "suspended" - Turns on own facts

Legislation:

Family Court Act 1997 (WA), s 66, s 66A, s 66B, s 66C, s 70A, s 89AA

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

Result:

Appeals dismissed

Category: B

(Page 3)

Representation:

CACV 161 of 2006

Counsel:

Appellant : In person

Respondent : Ms M M Wadsworth

Solicitors:

Appellant : In person

Respondent : Kott Gunning

CACV 76 of 2007

CACV 133 of 2007

Counsel:

Appellant : In person

Respondent : Ms M M Wadsworth

Solicitors:

Appellant : In person

Respondent : Kott Gunning

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

MTI v SUL [No 2] [2007] WASCA 240
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

(Page 4)

JUDGMENT OF THE COURT

CACV 161 of 2006

1 Application 161 of 2006 is an application to review a decision of Pullin JA made on 28 August 2007. His Honour concluded that none of the appellant's proposed grounds of appeal from a decision of a judge of the Family Court of Western Australia had a reasonable prospect of succeeding. His Honour therefore refused leave in relation to all grounds and dismissed the appeal.

2 There are three grounds of appeal. One can be disposed of at once. It is that "[t]he appeal was heard by a…

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 [No 3]

Details

AGLC: MTI v SUL [No 3] [2008] WASCA 19
Case: [2008] WASCA 19
Decision Date: 5 February 2008

CaseChat Overview and Summary

The appeal in MTI v SUL [No 3] involved the parents of a minor child, MTI and SUL, who were embroiled in a dispute over custody and access arrangements. The case was heard in the Family Court of Australia, which has jurisdiction over family law matters. The father, MTI, appealed a decision that had been made in favour of the mother, SUL, regarding the custody and access arrangements for their child.

The primary legal issue before the court was whether MTI had a reasonable prospect of success on appeal and, if so, whether the appeal should be allowed to proceed. A secondary issue was the meaning of the term "suspended" in the context of a costs order made by the trial judge. The court was required to determine whether the costs order was intended to be fully suspended or partially suspended, and what implications this had for the parties' financial obligations.

The court examined the evidence and arguments presented by both parties and considered the applicable legal principles. It concluded that MTI did not have a reasonable prospect of success on appeal. The court found that the trial judge had made findings of fact based on the evidence presented and that these findings were not clearly wrong. Additionally, the court held that the term "suspended" in the costs order meant that the costs were to be paid by MTI, but the payment was to be deferred until a later date. The court dismissed the appeal and ruled that the orders made by the trial judge should stand.

As a result, the appeals made by MTI were dismissed, and the orders made by the trial judge remained in effect. The court did not make any further orders in relation to the costs or any other aspect of the case.

Orders

Orders of the court

Appeals dismissed

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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