PETERSON and GODWIN

[2022] FCWA 25

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 adjourned in August 2021 when the husband's counsel was unwell.

2The matters presently requiring determination are the father's application for leave to appeal, and (if leave is granted) his appeal against interim parenting orders made by a Family Law Magistrate in the [Regional Town A] circuit [in] June 2021 ("the primary orders"). Those orders provide for the children to spend time with the father on a two-weekly cycle from Wednesday at the conclusion of school to Sunday at 1.00 pm each alternate week, extending to 4.30 pm on Monday in school holiday periods.

Background

3 The parties began living together in [Regional Town B] in late 2013 before moving to Regional Town A. They separated under one roof on several occasions before separating finally when the mother left the home in August 2019 in circumstances in which she alleged family violence, and family violence restraining orders were made.

4The mother commenced proceedings [in] November 2019 seeking interim orders for the children to live with her and spend regular time with the father, not including overnight time. The father filed responding documents [in] December 2019 seeking interim orders for the children to live with him until the mother returned a clear drug test, and that subject to such a test the children live with each parent on a week about basis. In those documents, the father acknowledged that there was family violence in the relationship, albeit on his case that was perpetrated by both parties. It was common ground that the mother had been a stay-at-home parent until resuming part-time work in late 2018, while the father had been employed including a period of between 12 and 18 months working FIFO.

5[In] January 2020, interim orders were made by consent for the children to live with the mother and spend time with the father each week from 4.30 pm on Thursday until 4.30 pm on Sunday, and the proceedings were otherwise adjourned to a later date. Both parties filed applications in the case and further affidavit material, and there was a series of hearings in the Regional Town A Magistrates' Court.

6The proceedings were subsequently transferred to this court; orders were made for the parties to participate in mediation. There were then further disputes between the parties, and each filed further applications and affidavits. [In] February 2021 orders were made by consent until further order, pending an interim hearing listed that day for [a date in] June 2021.

7The orders of February 2021 varied the orders made [in] January 2020 such that the children would spend time with the father:

(a)in week one - from Thursday at 4.30 pm until Sunday at 4.30 pm; and

(b)in week two - from Wednesday at 4.30 pm until Saturday at 4.40 pm.

The hearing [in] June 2021 and intervening events

8The matter came on for the scheduled interim hearing in the Regional Town A circuit [in] June 2021. Both parties were represented at the hearing. Neither had complied with orders made [in] February 2021 for the filing of minutes of interim orders sought and affidavits.

9That said, since the hearing [in] February 2021 intervening events had placed still further evidence before the court, over and above the multiple affidavits already filed.

10The mother swore an affidavit [in] January 2021, which was promptly served on the father. She asserted that the then current interim orders placed the children at serious risk, referring to multiple alleged incidents of violence and abusive behaviour. The father filed an affidavit in response [later in] January 2021. The mother's affidavit was not before the Court [in] February 2021 due to issues with its filing; orders were made that day permitting it to be refiled.

11[In] February 2021, the mother filed an application seeking an urgent hearing and to suspend the orders of February 2021, proposing that the father spend time with the children for no less than two hours per fortnight under professional supervision. She said that what she described as the father's erratic behaviour had increased since [a date in] February 2021, and set out the circumstances around Child A being injured by a dog while in the father's care and the difficult interactions between the parties thereafter. The father filed responsive documents urgently, including an affidavit sworn [in] February 2021 in which he denied the allegations.

12[In] February 2021, the Department of Communities ("the Department") published a memorandum confirming that it had investigated the mother's complaints and had advised her to keep the children in her care until a Safety Plan was prepared. The Department confirmed that the Safety Plan had been developed with the father [in] February 2021.

13The matter came before a Family Law Magistrate in Perth [in] February 2021. The memorandum from the Department was received into evidence, and the parties were ordered to attend a case assessment conference [in] May 2021.

14That conference proceeded as scheduled and a detailed memorandum was prepared by the family consultant. The memorandum outlined the competing allegations of the parties in detail. It confirmed that the father sought an equal shared care arrangement and that the mother proposed that the father's limited time with the children be supervised. The father also confirmed that he was defending criminal charges for assaulting the mother and that the matter was scheduled to go to trial [in] August 2021.

15All the materials just referred to were before the primary magistrate at the hearing [in] June 2021.

16At the commencement of the hearing, the primary magistrate noted the relatively recent appointment of the Independent Children's Lawyer ("ICL"). Her Honour noted that there had been "a number of different interim matters that have been listed before the Court, and a lot of material filed by both parties," and enquired as to the ICL's position in relation to the competing applications. After an initial response from the ICL, in which he indicated that he would not be supportive of the father's proposed progression to a week about arrangement, her Honour enquired of the mother's lawyer as to her position.

17Counsel for the mother confirmed that she proposed that the father's time with the children be supervised. She referred to the various previous affidavits filed and noted that documents had been subpoenaed. She noted an apparent agreement to handover being supervised and referred to the case assessment conference memorandum. She clarified the mother's proposals.

18The primary magistrate then heard from counsel for the father. Counsel confirmed the agreement to handovers being supervised but proposed certain variations to the existing orders to avoid a reduction in the children's time with the father. She said that she had provided the mother's lawyers with copies of documents relating to the father's participation in various programs and confirmed that the criminal charges would be defended. After saying "we would, probably, like an interim hearing, your Honour in the upcoming circuit", she said that what was sought was that the father pick up the children from school, and return handovers be supervised. She proposed also that the parties communicate via a particular app. She then concluded her submissions.

19The primary magistrate then heard briefly from the father's counsel in response, before enquiring as to the ICL's view about the mother's proposals, which her Honour identified as being primarily that the father's time should be supervised, and if not "then the handovers should be supervised, and that there should be some consideration to a reduction in the time".

20The ICL submitted that "keeping these parties away from each other would be beneficial for the children" but did not support supervision of the children's time with the father nor an extension of that time as he sought. He proposed the appointment of a Single Expert Witness ("SEW"), and in essence submitted that the existing arrangements should remain in place pending that report, other than to make arrangements for supervision of handover.

21Having made observations as to the desirability of fewer transitions for the children between the two households given the circumstances of conflict, her Honour summarised both the evidence before her and her concerns, and the orders which she proposed to make. There were then further exchanges with counsel, and the orders the subject of the appeal were made. Her Honour's reasons delivered ex tempore ("the primary judgment") were subsequently published to the parties.

22The orders of February 2021 provided for the children to spend six nights per fortnight with the father, in two separate tranches of three nights each; the primary order varied those arrangements such that the children spend four nights per fortnight with the father in one tranche, extending to five nights in school holidays. That is at the heart of the father's present complaint.

The primary judgment

23In her reasons, the primary magistrate set out the relevant history of the matter to the extent necessary and summarised the competing proposals of the parties. She noted the position of the ICL, and that the mother had been "agitating for some time now for the father's time with the children to be supervised, as she considers the children are at risk of harm in [his] care" for a number of reasons. Her Honour then summarised those reasons, referring to the interaction with the Department noted above, and the content of the case assessment conference memorandum. She also noted the father's position and statements to the family consultant, and the observations of the consultant.

24From those materials, her Honour identified a risk to the children of emotional harm in the father's care, "particularly where the father says he reacts to the mother's behaviour". While noting the father's capacity to provide for the children's physical needs, her Honour concluded that it was in the children's best interests for handovers to be supervised, but not for their time with the father to be supervised as proposed by the mother. Nevertheless, the risks raised a concern in her Honour's mind as to the frequency of transitions for the children between the homes of the parties. Her Honour concluded that it would be preferable if in each two-week block they spent one period with the father to reduce that frequency.

25While the primary judgment is brief, her Honour's reasoning is made clear. Appropriately, there is no challenge on the appeal to the adequacy of her Honour's reasons.

The filing and progress of the appeal

26The father's Notice of Appeal was filed [in] July 2021. I made orders in chambers the same day listing the matter for directions [in] September 2021 and requiring the father to take specified steps by [a date in] August 2021 to ensure that the matter could be heard as soon as possible. The father did not properly comply with those orders, in that the chronology prepared by his solicitors was, to put it neutrally, problematic. Nevertheless, orders were made [in] September 2021 to facilitate the hearing of the appeal [in] November 2021.

27Those orders required the father to file and serve a written outline of submissions and list of authorities 14 days prior to the hearing, and the mother and the ICL to respond seven days prior to the hearing. In the meantime, appropriate steps had been taken by the parties with the assistance of the ICL to appoint a psychologist, [Psychologist A], as the SEW in the ongoing case.

28The father did not comply with the orders of September 2021 within the required time. Orders were accordingly made in chambers [in] November 2021 vacating the listed hearing and granting the father liberty to seek a relisting upon compliance with the earlier orders.

29The father filed his outline of submissions [in] November 2021, and the matter was relisted for hearing on the first available date.

30[In] January 2022, the father filed an application in a case seeking orders described below. He relied on an affidavit sworn the same day in support of that application.

31The mother filed her outline of submissions [in] January 2022, and the ICL filed his outline of submissions [later in] January 2022.

32The hearing proceeded [even later in] January 2022.

The relief sought

33Both the notice of appeal and the application in a case lacked clarity as to the relief sought. In exchanges with counsel for the father, I sought to clarify the position.

The notice of appeal

34The notice of appeal stated that the orders sought were as follows (reproduced verbatim other than as indicated):

"1)That [the primary magistrate] be dismissed from hearing these proceedings [redacted].

2)That orders dated [redacted] June 2021 namely Orders 1, 2 and 6 be dismissed and;

(a)The time with arrangements for the children to spend time with the father be reverted back to previous Orders as amended by Consent 8 February 2021, namely Order 1 with handover to occur where possible at [Supervision Centre A] on the weekends and brought forward to 3.00 pm on weekdays."

35On its face, therefore, the father's notice sought the disqualification of the primary magistrate (as distinguished from a remitter for rehearing before a different magistrate) and the re-exercise of discretion on the appeal, purportedly to discharge the orders made [in] June 2021 to the extent they discharged the orders made [in] February 2021 by consent, yet varying the orders of February 2021 both by increasing the time the children are to spend with the father (albeit marginally) and by imposing a handover requirement not present in those orders but present in the primary orders. No ground for disqualification of the primary magistrate was articulated or pursued.

36Counsel confirmed that the father's primary position was that I should re-exercise discretion and reinstate the orders of February 2021 with the amendments just described. That said, counsel acknowledged the potential issue as to the re-exercise of discretion some seven months after the making of the primary orders without both parties being given proper opportunity to adduce evidence as to subsequent developments, and as to current circumstances.[1] Without formally conceding the point, counsel eventually acknowledged that if the appeal was allowed, the matter would have to be remitted for rehearing, with the present arrangements for the children pursuant to the primary orders remaining in place pending that hearing.

The application in a case filed [in] January 2022

[1] Allesch v Maunz (2000) 203 CLR 172.

37The father's application sought orders in the following terms (reproduced verbatim):

"1)That evidence on the court file received post June [redacted] 2021 be admitted to be considered in the appeal.

2)The evidence contained herein be added to the court file and admitted to be considered in the appeal."

38I asked counsel to explain just what was meant by that application, and what evidence not before the primary magistrate was sought to be relied upon on the appeal. She told me that the father sought to rely upon his affidavit filed with the application, including the material annexed to it, and the memorandum provided by the Department dated [in] July 2021.

39Both counsel agreed that it was appropriate to proceed with submissions being heard throughout the course of the substantive hearing, rather than the issue of admission of additional evidence being heard separately. Counsel for the mother did not oppose the application, provided his client was given the opportunity to respond and herself adduce updating evidence before any re-exercise of discretion.

Relevant Legal Principles

Leave to appeal

40The parties were not married. The proceedings fall to be determined pursuant to the Family Court Act 1997 (WA) ("the Act").

41The relevant orders are interlocutory in nature. They were made by a Family Law Magistrate in the exercise of non-federal jurisdiction; leave to appeal is accordingly required.[2]

[2] Family Court Act 1997 (WA), s 211(1).

42If leave is granted, the appeal must proceed by way of a rehearing, but the Court "may receive as evidence any record of evidence given, including any affidavit filed or exhibit received, in the Magistrates Court"[3] and "may make such decrees as it thinks fit, including a decree affirming, reversing or varying the decree the subject of the appeal".[4]

[3] Ibid, s 211(2)(a).

[4] Ibid, s 211(2)(b).

43For leave to appeal to be granted, the Court must be satisfied that the decision in question is wrong, or at least attended with sufficient doubt to warrant the grant of leave, and that a substantial injustice will result from a refusal of leave to appeal. That test is to be applied in the general run of cases, but in the context of the unfettered discretion to grant leave to appeal. It may give way to the particular interests of justice in appropriate cases.[5]

[5] Medlow & Medlow (2016) FLC 93-692; Jess and Ors & Jess and Ors (2014) FLC 93-620; Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101.

44The first limb of the test is directed to the outcome at first instance, rather than to the path by which that outcome was reached, keeping a firm focus on the real issue - whether there is a realistic prospect of the decision being reversed if the appeal is permitted to proceed.[6] The consideration of the first limb of the test informs the consideration of the second.

[6] Jess and Ors & Jess and Ors (2014) FLC 93-620, [63].

45The legislative requirement that leave be granted before a party may appeal against an interlocutory order reflects the policy consideration that court resources "should not lightly be taken up with appeals about decisions in connection with proceedings which do not finally determine the rights of the parties".[7]

The application to adduce further evidence

[7] Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564, [42].

46There is no express provision in the Act to allow the introduction of further evidence on an appeal. Nevertheless, in my view the court clearly has a discretion to do so.

47An appeal by way of rehearing by its nature admits of the possibility of further evidence, not before the court at first instance, being adduced.[8] It follows that where legislation provides that an appeal is to proceed by way of rehearing, the Court must retain a discretion to admit further evidence on the appeal, whether or not the legislation contains an express provision to that effect.[9]

[8] Allesch v Maunz (2000) 203 CLR 172, 180 [23].

[9] See Orosz and Sowards [2010] FCWA 99; Pangkala and Todd [2019] FCWA 115.

48The discretion to admit further evidence in an appeal by way of rehearing "obviously needs to be exercised with much care in parenting cases".[10] Further evidence which is not in dispute will be readily admitted.[11] Where the evidence is not of matters which have arisen since the primary hearing, the failure to adduce that evidence at the primary hearing may be a relevant factor, although the weight to be attached to that failure will vary depending on all other relevant considerations.[12]

[10] CDJ v VAJ(No 1) (1998) 197 CLR 172, [117].

[11] Ibid, [114].

[12] Ibid.

49The power to admit further evidence on appeal is remedial in nature. It "exists to facilitate the avoidance of errors which cannot otherwise be remedied by the application of conventional appellate procedures".[13]

[13] Ibid, [109].

50That said, the power to receive further evidence on appeal is not "a solvent for correcting orders that the [appellate court] regards as unsatisfactory but which contain no appealable error".[14] Further evidence will not be admitted where the appellant fails to establish any error in the making of the orders, but simply seeks a new hearing because on the whole of the evidence later available different orders might be made.[15] The availability of further evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal.[16]

[14] Ibid, [148].

[15] Ibid.

[16] Ibid, [111].

51Those observations inform the consideration of a further issue - whether the further evidence sought to be adduced can inform the required decision as to whether leave to appeal should be granted, or whether it may only be adduced on the positive exercise of a discretion to do so after leave to appeal has been granted.

52In the context of industrial law, the High Court has held that the determination of the threshold question as to whether leave to appeal is to be granted is not informed by the further evidence sought to be adduced.[17] In my view, the same principles apply in the present proceedings notwithstanding the obviously different context.

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

53The approach to be taken to the grant of leave in Family Law proceedings, and the principles applicable to the admission of further evidence on the appeal, have already been outlined. The admission of further evidence in support of an application for leave to appeal, particularly where the proposed evidence is of events which have occurred after the primary decision, runs the risk of subverting the legislative intention evinced by the imposition of a requirement for leave to pursue an appeal by way of rehearing. It cannot inform a consideration of whether the primary decision was clearly wrong or attended with sufficient doubt to warrant the grant of leave, based on the evidence before the primary magistrate. While it might be that in very limited circumstances further evidence might inform a consideration of the separate question of whether a substantial injustice will result from a refusal of leave to appeal, the conjunctive test for the grant of leave must be borne in mind.

The grounds of appeal

54The grounds of appeal as drafted lacked both clarity and specificity. At the commencement of the hearing, I sought to confirm with counsel for the father my understanding of the matters sought to be agitated.

55Counsel confirmed that by ground one, the father contended that he was denied procedural fairness in three respects;

(a)by the hearing [in] June 2021 proceeding to a determination of interim matters in circumstances where he and his solicitor had understood that it would not. That understanding was said to arise both from the failure of both parties to file further affidavits pursuant to the orders made [in] February 2021, and from discussions between the solicitors for the parties;

(b)by the primary magistrate proceeding to make orders which had the effect of reducing the children's time with him, where he could not have anticipated such orders being made and was therefore denied the opportunity to make proper submissions in relation to them; and

(c)by receiving and relying upon evidence from the bar table.

56Ground two asserted the primary magistrate erred in law by placing too much weight on matters then specified. Ground three asserted that the primary magistrate erred in law by placing too little weight on matters then specified.

Consideration of the grounds of appeal and whether leave should be granted

57As already noted, it is for the father to establish that a substantial injustice will result from a refusal to grant leave to appeal. Self-evidently, the consideration of that question requires examination of the likely outcome not only if leave is granted, but if the appeal is successful.

58It is clear (and accepted, if not formally conceded by counsel for the father) that the outcome of a successful appeal would be a remitter of the matter for rehearing by different magistrate, with the primary orders remaining in force pending that rehearing.

59It is also common ground between the parties and the ICL that the proceedings may appropriately be relisted for further hearing should either party seek to vary the primary orders on an interim basis, following the publication of the report of the SEW. While that report is not yet available, the ICL anticipates it will be available in May 2022. Counsel for the father acknowledged that even if the appeal is successful and the matter is remitted, the further interim hearing should not take place before the report is available.

60In short, the father will have exactly the same opportunity to seek a variation of the primary orders, and in the same timeframe, whether or not leave to appeal is granted and whether or not the appeal is successful.

61While the father perceives an injustice to him in the path followed to date, there is no identifiable prejudice to him, let alone a substantial injustice, if leave to appeal is not granted. There is no basis advanced to depart from the usual test for a grant of leave.

62That of itself is sufficient to determine the matter. For the sake of completeness, however, I will briefly deal with the merits of the grounds of appeal.

Ground one

63The father's contentions under this ground, summarised above, face several obvious difficulties.

64The orders of February 2021 clearly listed the proceedings for interim hearing [in] June 2021. Orders were also made requiring each party to file and serve a minute of proposed interim orders sought, affidavits of their own evidence, and affidavits of any witnesses by [a date in] June 2021.

65On the mother's case, difficulties with the substantive orders made [in] February 2021 emerged very quickly. She filed an application in a case on [a date later in] February 2021 seeking suspension of the orders of February 2021, sole parental responsibility, and for the father to spend supervised time only with the children. She sought an urgent listing. The father filed a response [later in] February 2021 seeking the dismissal of that application. The matter came on before a magistrate in Perth [again later in] February 2021 and orders were made as already described.

66The mother's application in a case was not dismissed and remained on foot. No order was made varying the earlier order listing the matter for an interim hearing [in] June 2021. The proposition that the father was not on notice that the mother sought to reduce the time the children spend with him must be viewed in that context. I reject the submission made by counsel for the father to the effect that the application was to all intents and purposes, albeit not formally, dealt with and finalised at the hearing [in] February 2021.

67In addition, the affidavit sworn by the mother [in] January 2021 referred to above set out extensive allegations of family violence, threats including in the presence of the children, and the incident which led to the currently pending criminal charges against the father. The mother's affidavit filed in support of her application in a case [in] February 2021 raised further alleged concerns. The father was squarely on notice in relation to those matters, and indeed had responded to them. The affidavits of both parties were before the primary magistrate.

68It was contended on behalf of the father that the solicitors for the parties had agreed prior to the hearing [in] June 2021 that the matter would be adjourned without argument. That contention was disputed, and in any event was not pursued with any vigour at the hearing before me. The father was represented at the hearing [in] June 2021 and the contention was not raised before the primary magistrate.

69It was submitted further that the father had no opportunity to put his case at the hearing. The transcript does not support that submission; not only did the father have an opportunity to put his case and make submissions through his then counsel, he did so. Further, no application was made before the primary magistrate for an adjournment; I reject the proposition that the passing comment by counsel in the middle of active submissions in response to those made on behalf of the father, and in support of orders sought by her client that "we would, probably, like an interim hearing, your Honour, in the upcoming circuit" amounted in any way to an application for an adjournment. It was not pressed in any event.

70The father is, subject to limited exceptions, bound by the conduct of the hearing on his behalf at first instance.[18] No such exceptions are present here.

[18] Metwally & University of Wollongong (1985) 60 ALR 68, 71; Water Board v Moustakas (1988) 180 CLR 491.

71The first limb of ground one, that the father was denied procedural fairness by virtue of the hearing proceeding, is without merit.

72The second limb of ground one, that the father could not have anticipated that orders would be sought reducing the children's time with him and that he accordingly was denied the ability to respond, similarly has no merit for the reasons already set out, and most particularly the clear statements of the mother's position in the affidavits and in the case assessment conference. While it is true that neither party had complied with the orders made [in] February 2021 for the filing of minutes of orders sought and updating affidavits, events had overtaken those orders.

73Further, as already noted, no adjournment was sought, and submissions were made on the father's behalf.

74The third limb of ground one asserts error on the part of the primary magistrate in receiving evidence from the bar table.

75It may first be noted that evidence wrongly admitted will not form the basis of a successful appeal unless it is demonstrated that its admission influenced the judgment. If wrongly admitted evidence was irrelevant, ancillary, redundant or insufficiently prejudicial to affect the outcome, its admission cannot ground a successful appeal.[19]

[19] Piddington v Bennett & Wood Pty Ltd (1940) 63 CLR 533, 554, 563; Balenzuela v De Gail (1959) 101 CLR 226, 235-236.

76Against that background, I asked counsel for the father to identify, firstly, what statements of alleged fact from the bar table were not in evidence elsewhere, and secondly, where in the judgment any indication appeared that such statements were relied upon by the primary magistrate or in any sense influenced her decision. Limited and inconsequential examples in response to the first limb of that question were identified by counsel. She conceded that she could not point to anything in the primary judgment to indicate that in making her decision the magistrate relied on any of the matters so identified. I reject counsel's submission that it should somehow be inferred nevertheless that her Honour did rely on those matters.

77The third element of ground one is without merit.

Grounds two and three

78Grounds two and three are weight challenges. The relevant principles are well-established. In the absence of exclusion of relevant considerations, or admission of irrelevant considerations, an appeal court should not set aside an order made in the exercise of judicial discretion unless it is shown that the failure to give adequate weight to relevant considerations effectively amounts to a failure to exercise the discretion at all.[20] No such circumstances are present here.

[20] Mallett v Mallett (1984) 156 CLR 605, Gibbs CJ citing with approval the statement of Latham CJ in Lovell v Lovell (1950) 81 CLR 513; Gronow v Gronow (1979) 144 CLR 513.

79Even were leave to appeal to be granted, there is no merit in the appeal.

Conclusion and orders

80For the reasons outlined earlier, the application for leave to appeal is without merit, and should be dismissed. The application to adduce further evidence on the appeal accordingly falls away; of course, it is open to the father to seek to rely on the evidence referred to in that application in any further interim hearing requested by either party or the ICL after the publication of the report of the single expert witness.

81There will be the following orders:

1.The father's application for leave to appeal against the orders made by a Family Law Magistrate [in] June 2021 is dismissed.

2.In the event that the respondent mother and/or the Independent Children's Lawyer seek orders for costs:

(a)written submissions in support of any such application must be filed and served within 28 days;

(b)the applicant father must file and serve any written submissions in response within 28 days thereafter;

(c)the mother and/or the Independent Children's Lawyer have liberty to file and serve brief written submissions in reply within 14 days thereafter;

(d)the parties and the Independent Children's Lawyer have liberty to seek a relisting before the presiding Judge for the making of oral submissions in relation to costs; and

(e)if no such request for a relisting is made within 28 days after the date of filing of the applicant father's written submissions in response to the costs application, or the date on which such submissions were due to be filed (whichever is the later) the file is to be referred to the presiding judge in chambers for determination of the costs application and delivery of reasons and orders from chambers without further notice.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

GA

Associate

11 FEBRUARY 2022