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PANGKALA and TODD

PANGKALA and TODD

Case [2019] FCWA 115 4 June 2019

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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…

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 PANGKALA and TODD

Details

AGLC: PANGKALA and TODD [2019] FCWA 115
Case: [2019] FCWA 115
Decision Date: 4 JUNE 2019

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