WALLACE and WAGNER - [2021] FCWA 205

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WALLACE and WAGNER [2021] FCWA 205
CORAM: O'BRIEN J
HEARD: 5 NOVEMBER 2021
DELIVERED : Ex tempore
PUBLISHED : 4 NOVEMBER 2022
FILE NO/S: [Redacted]
BETWEEN: MR WALLACE
Applicant
AND
MS WAGNER
Respondent

Catchwords:

EXPERT WITNESSES – Where, after the conclusion of the relevant proceedings, the father seeks the discharge of injunctions granted restraining the parties from making any complaint to a professional body or association concerning the conduct of the Single Expert or the content of her report without leave – Where the application is opposed by the mother – Where the Single Expert is given the opportunity to give evidence and make submissions in relation to the application – Where the purpose of the injunction when granted was the maintenance of the integrity of proceedings which are now completed – Where arguments that public policy considerations support a continuation of the injunction are unpersuasive –Injunction discharged.

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 2021 (Cth)
Health and Disability Services (Complaints) Act 1995 (WA)
Health Practitioner Regulation National Law (WA) Act 2010
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Lawyer A

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Law Firm A

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

Hearne v Street (2008) 235 CLR 125
Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747
R v Young [1999] NSWCCA 166
Re P’s Bill of Costs (1982) FLC 91-255
Re W Publication Application (1997) FLC 92-756
Taylor v Taylor (1979) FLC 90-674
Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31

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 Wallace and Wagner has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law 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 2010 (WA).

1The matter for determination is the application of [Mr Wallace] filed on 19 May 2021. He sought orders permitting him to pursue a complaint against [Dr C] arising from what he would allege to be failings in the execution of their role as Single Expert Witness ("SEW") in parenting proceedings, which were finalised by the making of consent orders on 22 July 2020. The application is brought in circumstances where there is presently in force an injunction restraining the parties to those proceedings from making any such complaint without leave of the court.

The progress of the matter to a hearing

2When the application was filed, Mr Wallace was directed to serve his former partner…

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 WALLACE and WAGNER

Details

AGLC: WALLACE and WAGNER [2021] FCWA 205
Case: [2021] FCWA 205
Decision Date: 8 NOVEMBER 2021

CaseChat Overview and Summary

Wallace and Wagner was a case before the Family Court of Australia, where the father sought to discharge injunctions that had been granted to restrain the parties from making any complaints to professional bodies or associations about the conduct of a single expert or the content of her report. The mother opposed the father's application. The injunctions were initially put in place to maintain the integrity of the proceedings, which were now concluded. The court had to decide whether to discharge the injunctions in light of the completed proceedings and the Single Expert being given an opportunity to give evidence and make submissions.

The primary legal issue was whether the injunctions, which were originally intended to maintain the integrity of the proceedings, should be discharged now that those proceedings had concluded. The court also had to consider the arguments related to public policy and whether they supported the continuation of the injunctions. The father argued that the purpose of the injunctions had been fulfilled, and the injunctions should be discharged. The mother, on the other hand, opposed the discharge of the injunctions, relying on public policy considerations.

The court held that the purpose of the injunctions had been fulfilled with the completion of the proceedings. The court found that the arguments supporting the continuation of the injunctions based on public policy were unpersuasive. The Single Expert had been given the opportunity to give evidence and make submissions, and no compelling reasons were presented to maintain the injunctions. Consequently, the court discharged the injunctions.

The court concluded that the injunctions should be discharged, given the completion of the proceedings and the lack of compelling reasons to maintain them. The discharge of the injunctions would allow the parties to make complaints to professional bodies or associations about the conduct of the Single Expert or the content of her report without leave.

Orders