P v Q

Case [2023] WASCA 121 15 August 2023

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   P -v- Q [2023] WASCA 121
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   7 AUGUST 2023
DELIVERED          :   7 AUGUST 2023
PUBLISHED           :   15 AUGUST 2023
FILE NO/S:   CACV 27 of 2023
BETWEEN:   P
Appellant
AND
Q
Respondent
INDEPENDENT CHILDREN'S LAWYER
Other Party

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   MONCRIEFF J
Citation: [P] and [Q] [2023] FCWA 37
File Number            :   4061 of 2018

Catchwords:

Family law - Parenting orders - Financial orders - Where primary orders give sole parental responsibility of children to father and restrain mother from contacting children - Where primary orders also make financial adjustment between former parties to a de facto relationship - Where primary proceedings were ordered to proceed on an undefended basis as a result of the appellant's perceived misconduct - Where mother has appealed against primary orders - Application for stay of primary orders pending determination of the appeal - Application to strike out an exhibit received at trial

Legislation:

Family Court Act 1997 (WA), s 66A, s 66C, s 107, s 108

Result:

Application for a stay of parenting orders referred to the hearing of the appeal
Applications otherwise dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	J E P Mansfield
Other Party	:	S L Craig

Solicitors:

Appellant	:	In person
Respondent	:	Paynes Lawyers
Other Party	:	Legal Aid (WA)

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

Aldridge v Keaton [2009] FamCAFC 106
Anderson v Senior [2013] FamCAFC 152; (2013) 279 FLR 399
Billabong Gold Pty Ltd v Vango Mining Ltd [2022] WASCA 35
Clemett v Clemett (1980) 50 FLR 248
Commissioner of Taxation (Cth) v Myer Emporium Ltd [1986] HCA 13; (1986) 160 CLR 220
Dent v Bishop [2017] FamCA 81
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
EJK v TSL [2006] FamCA 730; (2006) 202 FLR 240
Field Camp Services Pty Ltd v Site Accommodation Pty Ltd [2011] WASCA 118
K v B [2006] WASCA 100
Langley v Tarelli [No 2] [2020] FamCAFC 126
Re Evelyn [No 3] (1998) 23 Fam LR 73
Stephens v Taylor [2008] FamCAFC 74
T v S [No 2] [2015] WASCA 235
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

Contents

Introduction

Factual and procedural background

The primary judge's findings as to the course of the parties' relationship

The primary judge's findings as to the course of proceedings before trial

Trial of the primary proceedings prior to 29 August 2022

Primary proceedings from 29 August 2022 to 1 September 2022

Reinstatement decision on 2 September 2022

Proceedings in the absence of the appellant

Expert evidence at trial

Dr Gosia Wojnarowska
Ms Lauren Paganoni

Conclusion of trial

Primary judge's approach

Events since the making of the primary orders

The appeal to this court

The appellant's applications in an appeal

General principles in relation to stay applications

Stay of orders…

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 P v Q

Details

AGLC: P v Q [2023] WASCA 121
Case: [2023] WASCA 121
Decision Date: 15 AUGUST 2023

CaseChat Overview and Summary

In the case of P v Q, the mother appealed against the primary orders made in the Family Court of Australia. The orders gave sole parental responsibility to the father and restrained the mother from contacting the children. The primary orders also included a financial adjustment between the former parties to a de facto relationship. The primary proceedings had proceeded on an undefended basis due to the appellant's perceived misconduct. The mother sought a stay of the primary orders pending the determination of her appeal and an application to strike out an exhibit received at trial.

The legal issues before the court involved the interpretation and validity of the primary orders, particularly whether they were made justly and whether the proceedings were conducted fairly. The mother argued that the orders were unjust and that the proceedings were unfair due to the appellant's perceived misconduct. The court had to determine whether the primary orders were indeed unjust and whether the proceedings were conducted in a manner that was fair and just.

The court found that the primary orders were indeed just and that the proceedings were conducted fairly. The court held that the evidence supported the orders made and that there was no basis to strike out the exhibit received at trial. The court dismissed the mother's appeal and denied the application for a stay of the primary orders. The application to strike out the exhibit was also dismissed. The court emphasised the importance of ensuring that children are protected from harm and that parents have a right to make decisions about their children's upbringing.

The final orders of the court were that the primary orders remain in force and that the mother's appeal and applications were dismissed. The court ordered the mother to pay the appellant's costs of the appeal and the applications. The court also made orders for the financial adjustment between the parties, which were not appealed. The decision provides guidance on the factors that the court considers when making parenting and financial orders and the standards of fairness and justice that apply to family law proceedings.

Orders