DKG v SJB

[2016] WASCA 149

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Adjournment
3. › Refusal to adjourn trial
4. › Party absent due to alleged illness
5. › Whether refusal to adjourn constituted denial of procedural fairness
6. › Finding that illness was fictitious
1. Family Law
2. › Child-related proceedings
3. › Parenting orders
4. › Time spent with non-custodial parent
5. › Reduction of contact time
6. › Whether discretion miscarried
7. › Best interests of child
8. › Family Court Act 1997 (WA), s 66C
1. Appeal
2. › Extension of time to appeal
3. › Whether extension should be granted
4. › Availability of alternative remedy
5. › Application to set aside orders made in absence

Quick Take

A primary judge may refuse to adjourn a trial where a party claims sudden illness on the eve of trial, if the judge is entitled on the evidence to find the claimed illness is fictitious, having regard to the party's history of delay, prior false claims, and absence of medical evidence. In such circumstances, the party is not denied procedural fairness but rather has chosen not to take up the opportunity to present their case. The appropriate remedy for a party in whose absence a trial has proceeded is to apply to the primary judge to set aside the orders, not to appeal.