PANGKALA and TODD

Case [2019] FCWA 115


JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: PANGKALA and TODD [2019] FCWA 115

CORAM: O'BRIEN J

HEARD: 30 APRIL 2019

DELIVERED : 4 JUNE 2019

FILE NO/S: PTW 5883 of 2018

BETWEEN: MR PANGKALA

Applicant

AND

MS TODD

Respondent


Catchwords:

PARENTING - Application for leave to appeal against interim order of a Family Law Magistrate - Test to be applied - Where applicant contends that Magistrate had a positive obligation to admit documents into evidence of his own volition when neither party sought to tender them - Where applicant refers to the principles to which the Court must give effect in child related proceedings - No merit in proposed grounds of appeal - Application dismissed.

PRACTICE & PROCEDURE - Where applicant seeks to adduce further evidence on appeal - Where there is no express provision in legislation permitting further evidence - Appeal by way of rehearing by its nature admits of the possibility of further evidence - Where the Court has power to admit further evidence notwithstanding absence of express legislative provision.

Legislation:

Family Court Act 1997 (WA)

Category: Reportable

Representation:

Counsel:

Applicant : Mr Berry SC
Respondent :

No appearance

Independent Children's Lawyer : Ms Parkinson

Solicitors:

Applicant : Dimond Family Lawyers
Respondent :

Self Represented Litigant

Independent Children's Lawyer : DCH Legal

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

Allesch v Maunz (2000) 203 CLR 172

Banks & Banks (2015) FLC 93-637

Bennett (1991) FLC 92-191

CDJ v VAJ (1998) 197 CLR 172

CDW v LVE [2015] WASCA 247

Eaby & Speelman (2015) FLC 93-654

Farmer & Rogers [2010] FamCAFC 253

Foley v Ellis [2008] NSWCA 288

Huntingdale Village Pth Ltd (Receivers and Managers appointed v Korda [2015] WASCA 101

Jess & Jess (2014) FLC 93-620

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

Medlow & Medlow (2016) FLC 93-692

Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267

SCVG & KLD (2014) FLC 93-582

SS & AH [2010] FamCAFC 13

U v U (2002) 211 CLR 238

Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes & Dignan (1931) 46 CLR 73

Western Australia v Ward (2002) 213 CLR 1

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

1[Mr Pangkala] (“the father”) and [Ms Todd] (“the mother”) have three children: [Child A] born [in] 2009, [Child B] born [in] 2012 and [Child C] born [in] 2016.

2Pursuant to interim orders made by a Family Law Magistrate on 28 November 2018, the children live with the mother in [Town A] and are to spend time with the father (who lives in [Town B]) during school holidays. The father seeks leave to appeal those orders and, if leave is granted and the appeal is allowed, that orders be made whereby the children would immediately come to live with him.

3Central to the father’s application and proposed appeal is his contention that the…

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AGLC
PANGKALA and TODD [2019] FCWA 115
Case
[2019] FCWA 115
Decision Date

CaseChat Overview and Summary

In the case of Pangkala and Todd, the matter before the Family Court of Australia was an application for leave to appeal against an interim order made by a Family Law Magistrate. The dispute involved parenting arrangements for the parties' child. The applicant, Pangkala, sought to appeal on the basis that the Magistrate had failed to admit certain documents into evidence without either party seeking to tender them. Pangkala argued that the Magistrate had a positive obligation to consider these documents, particularly in light of the principles the court must follow in child-related proceedings.

The legal issues before the court were whether Pangkala's proposed grounds for appeal had merit and whether the court had the discretion to admit further evidence in an appeal by rehearing. Pangkala contended that the Magistrate should have admitted the documents of his own volition and that this failure constituted an error warranting an appeal. Additionally, Pangkala sought to present further evidence on appeal, which was not expressly permitted by legislation.

The court found no merit in Pangkala's proposed grounds for appeal, concluding that the Magistrate had no obligation to admit documents into evidence without either party seeking to tender them. The court further held that, although the legislation did not expressly provide for the admission of further evidence in an appeal by rehearing, the court retained the inherent power to do so. As the application for leave to appeal did not succeed on the grounds presented, the application was dismissed.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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