P v Q [No 2]

Case [2023] WASCA 163


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   P -v- Q [No 2] [2023] WASCA 163

CORAM:   MITCHELL JA

VAUGHAN JA

HALL JA

HEARD:   8 AND 9 NOVEMBER 2023

DELIVERED          :   15 NOVEMBER 2023

PUBLISHED           :   17 NOVEMBER 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 - Whether primary judge had power to make orders excluding the appellant from the proceedings in the circumstances - Whether primary judge's conduct of the primary proceedings gave rise to a reasonable apprehension of bias - Whether appellant was denied procedural fairness by reason of an infringement of the bias rule and the hearing rule in the primary proceedings

Legislation:

Family Court Act 1997 (WA), s 66A, s 66C, s 107, s 108
Family Court Rules 2021 (WA), r 5, r 8, r 172, r 173

Result:

Appeal allowed
Primary orders set aside
Retrial ordered

Category:    B

Representation:

Counsel:

Appellant : G Mohammed
Respondent : J E P Mansfield
Other Party : No appearance

Solicitors:

Appellant : Not applicable
Respondent : Paynes Lawyers
Other Party : Legal Aid (WA)

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

Akbar v Mali [2015] FamCAFC 244; (2015) FLC ¶93-685

Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation [1983] 1 NSWLR 1

Beckert v Beckert [2021] FedCFamC1A 40; (2021) 64 Fam LR 218

Browne v Dunn (1893) 6 R 67

Charisteas v Charisteas [2021] HCA 29; (2021) 273 CLR 289

CNY17 v Minister for Immigration [2019] HCA 50; (2019) 268 CLR 76

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; (2006) 229 CLR 577

Dennis v Commonwealth Bank of Australia [2019] FCAFC 231; (2019) 272 FCR 343

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337

Firmware Technologies Inc v Asia Platinum Group Ltd [2016] WASCA 179; (2016) 50 WAR 453

Galea v Galea (1990) 19 NSWLR 263

Gambaro v Mobycom Mobile Pty Ltd [2019] FCAFC 144; (2019) 271 FCR 530

Goldsmith v Legal Services and Complaints Committee [2023] WASCA 136

Herold v Herold [2015] FamCAFC 5; (2015) FLC ¶93-628

House v The King (1936) 55 CLR 499

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

Lazarevic v The State of Western Australia [2007] WASCA 156

Masters v The Queen [2022] NSWCCA 228; (2022) 102 MVR 223

Meadowcroft…

Continue reading P v Q [No 2]

Sign in free to access the full text

Details
AGLC
P v Q [No 2] [2023] WASCA 163
Case
[2023] WASCA 163
Decision Date

CaseChat Overview and Summary

In this family law matter, the parties were a father and a mother, who were previously in a de facto relationship and had two children. The father sought sole parental responsibility of the children and the mother was restrained from contacting them. Additionally, financial adjustment was made between the parties. The primary proceedings were conducted on an undefended basis due to the father's perceived misconduct. The father appealed the decision, arguing that the primary judge lacked the power to exclude him from the proceedings and that the judge's conduct gave rise to a reasonable apprehension of bias. The father further argued that procedural fairness was denied due to an infringement of the bias rule and the hearing rule in the primary proceedings.

The court considered whether the primary judge had the power to make orders excluding the appellant from the proceedings and whether the conduct of the primary judge gave rise to a reasonable apprehension of bias. The court also examined whether the appellant was denied procedural fairness by reason of an infringement of the bias rule and the hearing rule in the primary proceedings. The court noted that the primary judge had made a finding that the father was in contempt of court and had ordered him to leave the courtroom. However, the court found that the primary judge did not have the power to make such an order, and that the conduct of the primary judge did not give rise to a reasonable apprehension of bias.

The court held that the appeal was successful in part. The court found that the primary judge did not have the power to make orders excluding the appellant from the proceedings, and that the conduct of the primary judge did not give rise to a reasonable apprehension of bias. However, the court found that procedural fairness was denied due to an infringement of the bias rule and the hearing rule in the primary proceedings. The court set aside the primary orders and remitted the matter to the primary judge for reconsideration. The court also ordered that the parties bear their own costs of the appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.