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OWEN and GOSON

OWEN and GOSON

Case [2022] FCWA 156 26 July 2022

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: OWEN and GOSON [2022] FCWA 156
CORAM: O'BRIEN J
HEARD: 15 JULY 2022
DELIVERED : Ex tempore
FILE NO/S: [REDACTED]
BETWEEN: MR OWEN
Applicant
AND
MS GOSON
Respondent

Catchwords:

APPEAL - Where the father seeks to appeal parenting orders made by a Family Law Magistrate after a trial - Discussion of principles relevant to the grant of leave, and the proper distinction to be drawn between interim parenting orders and orders made following a trial, notwithstanding that both forms of orders are interlocutory in nature - Where the father asserts errors of law and in the exercise of discretion, inadequacy of reasons, and absence of procedural fairness - Where there is merit in each of the grounds of appeal - Leave to appeal granted and appeal allowed - Matter remitted for rehearing.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr M Beckerling
Respondent	:	Self-Represented Litigant

Solicitors:

Applicant	:	Efficient Law Group
Respondent	:	Self-Represented Litigant

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

Allesch v Maunz (2000) 203 CLR 172
Banks & Banks (2015) FLC 93-637
Bennett and Bennett (1991) FLC 92-191
Bhatnagar & Riju [2018] FamCAFC 144
Browne v Browne [2019] WASCA 1
Cape & Cape (2013) FLC 93-549
CDW & LVE (2015) FLC 93-683
Doherty & Doherty [2016] FamCAFC 182
Dundas & Blake (2013) FLC 93-552
French & Fetala [2014] FamCAFC 57
Gronow v Gronow (1979) 144 CLR 513
Guthrie and Guthrie (1995) FLC 92-647
Heidari & Ebadi [2020] FamCAFC 316
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Anor; Tatmar Pastoral Co Pty Ltd and Anor v Housing Commission of New South Wales [1983] 3 NSWLR 378
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101
Jess and Ors & Jess and Ors (2014) FLC 93-620
Johnson Tiles Pty Ltd and Ors v Esso Australia Ltd and Anor (2000) 104 FCR 564
L v P [2022] WASCA 40
Lovell v Lovell (1950) 81 CLR 513
Lovett & McGregor (2019) FLC 93-935
Mallet v Mallet (1984) 156 CLR 605
Marsden & Winch (2013) FLC 93-560
Medlow & Medlow (2016) FLC 93-692
Minister for Immigration and Citizenship v SZGUR and Anor (2011) 241 CLR 594
Newlands v Newlands (2007) 37 Fam LR 103
Paggett & Cable (2015) FLC 93-670
Poisat & Poisat (2014) FLC 93-597
Rice and Asplund (1979) FLC 90-725
Stott & Holgar and Anor [2017] FamCAFC 152
Tibb v Sheean (2018) 58 FamLR 351
U v U (2002) 211 CLR 238
Vallans v Vallans (2019) 60 Fam LR 193
Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd) v Dixon (2003) 200 ALR 447

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Owen and Goson has been approved by the Family Court of Western…

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 OWEN and GOSON

Details

AGLC: OWEN and GOSON [2022] FCWA 156
Case: [2022] FCWA 156
Decision Date: 26 JULY 2022

CaseChat Overview and Summary

In the matter of Owen and Goson, the father sought to appeal parenting orders made by a Family Law Magistrate following a trial. The father argued that the Magistrate had erred in making the orders, asserting that there were errors of law and in the exercise of discretion, inadequacy of reasons, and absence of procedural fairness. The appeal was heard in the Federal Circuit and Family Court of Australia. The court was required to determine whether there was merit in the father's grounds for appeal and whether leave to appeal should be granted.

The court considered the principles relevant to the grant of leave to appeal, noting the importance of distinguishing between interim parenting orders and orders made following a trial, despite both being interlocutory in nature. The court found that there was merit in each of the father's grounds of appeal. The Magistrate had indeed erred in law, in the exercise of discretion, provided inadequate reasons, and failed to observe procedural fairness. The court held that the appeal should be allowed and leave granted.

The Federal Circuit and Family Court of Australia allowed the appeal and remitted the matter for rehearing before a differently constituted panel of the Court. The court emphasized the importance of proper legal and discretionary reasoning, adequate reasons, and procedural fairness in making parenting orders. The rehearing was to ensure that the orders made were just and in the best interests of the children involved.

Orders