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 determination of this appeal.
The Notice of Appeal contains 16 grounds. By way of general comment, and by no means disrespectfully to the self-represented father, none of the grounds as drawn can be described as proper grounds of appeal at all. For example, ground 15 contends, “the father has been discriminated against in his employment as a parent due to race”.
More fundamentally, however, the grounds of appeal and the appeal more broadly, misunderstand the nature of the process that has already occurred and is in train in the Federal Magistrates Court (now the Federal Circuit Court).
An example of that misunderstanding can be seen in ground 1, which provides:
Final custody orders are based upon findings of family report writer. The family report clearly displays professional negligence through inaccuracies, omissions, incomplete review of evidence and bias. This is set out in supporting affidavit 1.
In a similar vein, the orders sought in the appeal at Part F of the Notice of Appeal provide as follows:
(1)The children shall live with the father.
(2)The mother to have same contact times as per interim order 7/8/12.
(3)Mother to have same visitation as per interim order 8/11/12.
(4)Mother to be remanded to professional psychiatric care.
Three matters are central to the manner in which the appeal was conducted this morning and its disposition.
First, as has already been mentioned, the father, at a time when he was represented, consented to the orders from which he now appeals. Secondly, those orders were interim orders made, as explained to the self-represented father this morning, in contemplation of them applying, until such time as there were further orders, specifically as then predicted, at a trial. Thirdly, and crucially, the trial of the parenting and other issues between the parties has in fact commenced.
The trial commenced a short time ago, before Judge Baker, a visiting judge of the Federal Circuit Court. The trial proceeded over four days but is, I am told, adjourned part heard. I am told that no further dates have as yet been allocated by Judge Baker for the conclusion of the trial.
Further, as earlier mentioned, the order from which the father appeals is an order which has been varied. It will also be clear that the father assumes, by reference to both the material he relies upon in the appeal and the orders sought by him in the appeal, (and indeed as is evident in the grounds), that this court would make an order that the children live with him rather than the mother.
As has been explained at some length to the self-represented father this morning, the consequence of a successful appeal by him would, in light of the issues live in this appeal and in the material more broadly, result in the remission of the matter for a fresh interim hearing before a Federal Circuit Court judge (Allesch v Maunz (2000) 203 CLR 172).
That course is, it will be apparent, redundant in circumstances where the intention of any such order is that it apply until such time as there is a trial at which all of the issues live between the parties can be fully determined and that trial has commenced.
In any event, it is not possible to say whether any remitted hearing would be heard prior to the conclusion of the trial but it may well not be. Once the consequences of a successful appeal are appreciated, it can be seen that the appeal is otiose.
For the sake of completeness, I should say that, an examination of the 16 grounds of appeal plainly indicates that, if fully argued, the appeal enjoys, in any event, very little, if any, prospects of success. Most of the matters the subject of the grounds of appeal are matters which the father seeks to agitate at the trial of the parenting proceedings which, as I have said, is in train.
The proper context for this appeal and the inevitable consequences of it, even if it were successful, together with what I perceive to be the deficiencies in the grounds, were pointed out to the self-represented father. He was given every opportunity to place before the court all such matters as he considered to be relevant or of concern to him in relation to the appeal.
In that context, the father sought an adjournment for the purposes of making an application in this appeal. Further exploration of the basis of that application revealed that, in fact, the complaint to which it relates pertains to something that had occurred in the part-heard trial. Of course, what did or did not, occur in that part-heard trial, does not pertain to the instant appeal against interim orders.
In light of all the matters, to which I have referred, the self-represented father, upon reflection, indicated that he wished to withdraw his appeal and have the court make no order as to costs. In light of the manner in which the appeal was conducted, including the dissemination of information to the self-represented appellant by me, I considered it inappropriate that the father be permitted to withdraw the appeal lest it be thought he was doing to under a form of pressure.
Rather, I considered that the better course was to consider the merits of the appeal. The result of that, for the reasons outlined, is that it should be dismissed.
In the circumstances of this case, neither the respondent mother nor the Independent Children’s Lawyer seeks an order for costs.
For the reasons outlined, the appeal should be dismissed and there should be no orders as to costs.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 13 June 2013.

Associate:

Date: 27 June 2013