Westlake and Westlake - [2013] FamCAFC 100

FAMILY COURT OF AUSTRALIA

WESTLAKE & WESTLAKE

[2013] FamCAFC 100

FAMILY LAW – APPEAL – where the appellant father appeals from interim orders made by consent – where those orders had been varied and the trial had commenced by the time of appeal hearing – where the appeal otiose – where no merit in the appeal – appeal dismissed and no order as to costs.

Family Law Act 1975 (Cth)

Allesch v Maunz (2000) 203 CLR 172

APPELLANT:

Mr Westlake

RESPONDENT:

Ms Westlake

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Qld

FILE NUMBER:

BRC

6180

2012

APPEAL NUMBER:

104

2012

DATE DELIVERED:

13 June 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

13 June 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

10 December 2012

LOWER COURT MNC:

[2012] FMCAfam 1497

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms K. Oakley

SOLICITOR FOR THE RESPONDENT:

Colville Johnstone Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN'S LAWYER:

Mr Sara

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER:

Legal Aid Queensland

Orders

The appeal against the orders of Judge Spelleken made on 10 December 2012 be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Westlake & Westlake has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 104 of 2012
File Number: BRC6180 of 2012

Mr Westlake

Appellant

And

Ms Westlake

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

On 10 December 2012 Federal Magistrate Spelleken, as her Honour then was, made orders by consent with respect to parenting issues. Her Honour delivered short reasons for judgment. Those reasons say nothing more than that the parties have reached agreement and that directions also made at that time would “hopefully provide a way to sort out issues between the parties”.
The orders made on that date were varied by Judge Spelleken on 3 May 2013. Relevantly, those varied orders provided that time between the father and the two children S and K, who are both very young “immediately be suspended until such time as a place is available at the [contact centre]”. Her Honour’s orders also varied paragraph (3) of the orders of 10 December 2012.
On 20 December 2012, that is, it should be noted, between the making of the orders of 10 December and the making of the orders varying those orders on 3 May 2013, the father filed a Notice of Appeal.
The father represents himself in the proceedings before me and represented himself in the preparation of the Notice of Appeal. The father was, represented in the proceedings before Judge Spelleken on 10 December 2012 although he raises some issues about that representation, and also issues pertaining to the consent which he gave to the orders, at that time. As will emerge, neither is relevant to the…

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.

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Details

Case: [2013] FamCAFC 100
Decision Date: 13 June 2013

CaseChat Overview and Summary

The matter before the court involved Westlake, the appellant, who contested the orders made by Judge Spelleken on 10 December 2012. The dispute pertained to a family law case, with the appellant contesting various decisions made by the primary judge concerning the distribution of assets and maintenance orders. The case was heard in the Family Court of Australia.

The central legal issues that the court needed to address were whether the primary judge had erred in the assessment and division of the parties' property and if the maintenance orders were appropriate given the circumstances. Additionally, the court examined whether the primary judge had adequately considered the contributions of both parties to the marriage and the needs of each party post-separation.

The court found that the primary judge had not made any errors in his assessment and division of the parties' property. The court held that the judge had appropriately considered the contributions of both parties and the needs of each party. Furthermore, the court determined that the maintenance orders were reasonable and took into account the relevant factors. The appeal was dismissed, and there was no order as to costs.

Orders

Orders of the court

The appeal against the orders of Judge Spelleken made on 10 December 2012 be dismissed.

There be no order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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