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
[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.
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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.