Y v X - [2020] WASCA 104

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   Y -v- X [2020] WASCA 104
CORAM:   MURPHY JA
PRITCHARD JA
VAUGHAN JA

HEARD:   11 JUNE 2020
DELIVERED          :   26 JUNE 2020
FILE NO/S:   CACV 142 of 2019
BETWEEN:   Y
Appellant
AND
X
Respondent

ON APPEAL FROM:
Jurisdiction              :   FAMILY COURT OF WESTERN AUSTRALIA
Coram:   MONCRIEFF J
Citation: X and Y [2019] FCWA 222
File Number            :   PTW 5730 of 2013

Catchwords:

Family law - Child related proceedings - De facto relationship - Appeal from interim parenting orders - Where appellant sought to contend that other orders made three years earlier against which there had been no appeal were erroneous - Whether judge displayed apprehended bias - Whether appellant was denied procedural fairness by being shut out of adducing certain evidence - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

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

Banks v Banks [2015] FamCAFC 36; (2015) FLC 93-637
Elmi & Munro [2019] FamCAFC 138
Fazio v Westpac Banking Corporation [2014] WASCA 80
Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Saunders v The Public Trustee [2015] WASCA 203
X and Y [2016] FCWAM 82
X and Y [2019] FCWA 222

JUDGMENT OF THE COURT:

Introduction

By his notice of appeal, the appellant (the father) appeals the decision of Moncrieff J dated 29 October 2019 in X and Y[1] (primary decision). The primary decision concerned proceedings for parenting orders between the respondent (the mother) and the father of a child, referred to herein as Z. The mother and father were in a de facto relationship for approximately two years between March 2011 and about April 2013. Z is the only child of the relationship between the mother and father.[2]
[1] X and Y [2019] FCWA 222 (the names of the parties and the children have been anonymised).
[2] Primary decision [1] - [2].
In the primary proceedings, the mother and father disputed the nature of parenting orders to be made in respect of Z. At the time of the primary decision, Z was eight years of age.[3]
[3] Primary decision [2].
By the primary decision, the judge found, in effect, that the father should undergo psychiatric and psychological therapeutic support, and that in the meantime, the father be given supervised (not unsupervised) access to Z in accordance with orders proposed by the Independent Children's Lawyer, and that the matter be relisted for further consideration in 15 months, at which time further updated reports as to the father's mental health should be available. On publication of the primary decision on 29 October 2019, the father absented himself from the court building and accordingly did not participate in submissions as to the terms of the orders to…

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 Y v X

Details

AGLC: Y v X [2020] WASCA 104
Case: [2020] WASCA 104
Decision Date: 26 JUNE 2020

CaseChat Overview and Summary

The appeal concerns a family law matter where the appellant, Y, sought to challenge interim parenting orders made in relation to the parties' child. Y argued that the other orders made three years earlier against which there had been no appeal were erroneous. Y also contended that the judge displayed apprehended bias and that Y was denied procedural fairness by being shut out of adducing certain evidence. The case was heard in the Family Court of Australia.

The legal issues before the court involved the interpretation and application of family law principles, specifically regarding interim parenting orders, the potential for bias in judicial decision-making, and the requirements for procedural fairness. The court needed to determine whether the orders were correctly made, whether the judge's impartiality was compromised, and if the appellant's rights to a fair hearing were upheld.

In addressing these issues, the court examined the previous orders and found no error in their making, as no appeal had been previously lodged. Regarding bias, the court scrutinised the judge's conduct and found no evidence of apprehended bias. On the matter of procedural fairness, the court held that the exclusion of certain evidence was justified in the circumstances. The court concluded that the orders were properly made and that there was no procedural unfairness.

The appeal was dismissed, and the interim parenting orders remained in place. The court's decision upheld the findings of the primary judge and confirmed the correctness of the orders made.

Orders