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PETERSON and GODWIN

PETERSON and GODWIN

Case [2022] FCWA 25 11 February 2022

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: PETERSON and GODWIN [2022] FCWA 25
CORAM: O'BRIEN J
HEARD: 27 JANUARY 2022
DELIVERED : 11 FEBRUARY 2022
FILE NO/S: [REDACTED]
BETWEEN: MR PETERSON
Applicant
AND
MS GODWIN
Respondent

Catchwords:

APPEAL - Where the father seeks to appeal against interim parenting orders - Where leave to appeal is required and sought - Where there is no identified prejudice to the applicant if leave is not granted, let alone substantial injustice - Where the grounds of appeal are without merit in any event - Application for leave to appeal dismissed.

APPLICATION IN AN APPEAL - Application to adduce further evidence on the appeal - Where leave to appeal is not granted and the application accordingly falls away.

Legislation:

Family Court Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Ms G Anderson
Respondent	:	Mr M Beckerling
Independent Children's Lawyer	:	Mr W Elder

Solicitors:

Applicant	:	Silvereye Legal
Respondent	:	Gray & Co Lawyers
Independent Children's Lawyer	:	West End Legal

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

Allesch v Maunz (2000) 203 CLR 172
Balenzuela v De Gail (1959) 101 CLR 226
CDJ v VAJ (No 1) (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101
Jess and Ors & Jess and Ors (2014) FLC 93-620
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Lovell v Lovell (1950) 81 CLR 513
Mallett v Mallett (1984) 156 CLR 605
Medlow & Medlow (2016) FLC 93-692
Metwally & University of Wollongong (1985) 60 ALR 68
Orosz and Sowards [2010] FCWA 99
Pangkala and Todd [2019] FCWA 115
Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533
Re Coldham; Ex parte Brideson (No 2) (1990) 170 CLR 267
Water Board v Moustakas (1988) 180 CLR 491

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Peterson and Godwin has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The parenting proceedings between [Mr Peterson] ("the father") and [Ms Godwin] ("the mother") were commenced in November 2019 and relate to the arrangements for the two children of the relationship, [Child A] born [in] January 2015, and [Child B] born [in] January 2017. The proceedings have involved considerable conflict and criminal charges have been laid against the father alleging that he assaulted the mother. Those charges are denied and are shortly to proceed to trial, having previously been…

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 PETERSON and GODWIN

Details

AGLC: PETERSON and GODWIN [2022] FCWA 25
Case: [2022] FCWA 25
Decision Date: 11 FEBRUARY 2022

CaseChat Overview and Summary

Peterson and Godwin involved a dispute between the father and the mother of a child, concerning interim parenting orders. The father sought to appeal against these orders, and subsequently applied for leave to appeal and to adduce further evidence. The court was required to determine whether leave to appeal should be granted and, if so, whether additional evidence could be introduced. The legal issues centred on whether the father could demonstrate sufficient grounds for appeal and whether any additional evidence could materially affect the outcome.

The court examined the grounds for the appeal and found them to be without merit. The father had not identified any substantial prejudice if leave to appeal was not granted, nor had he shown that there would be a substantial injustice if the appeal were not heard. The additional evidence the father sought to introduce was deemed irrelevant to the substantive issues at hand. Given the lack of merit in the grounds of appeal and the absence of demonstrated prejudice, the court concluded that leave to appeal should not be granted.

Accordingly, the application for leave to appeal was dismissed, and the subsequent application to adduce further evidence fell away as a result. The court emphasised that, without leave to appeal, any application for additional evidence could not proceed. The father's appeal was thus effectively precluded, and the interim parenting orders remained in place.

Orders