Westlake and Westlake (No 2) - [2019] FamCA 608

FAMILY COURT OF AUSTRALIA

WESTLAKE & WESTLAKE (NO. 2)

[2019] FamCA 608

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Where the father seeks a stay and/or adjournment of the hearing of competing vexatious proceedings order applications pending the outcome of his appeal against an order dismissing his application to vary the final parenting order – Where the mother and the independent children’s lawyer oppose the stay/adjournment – Where the father has failed to establish a proper basis for a stay/adjournment – Where the application is dismissed.

Family Law Act 1975 (Cth)

Mertens & Mertens [2016] FamCAFC 136

APPLICANT:

Ms Westlake

RESPONDENT:

Mr Westlake

INDEPENDENT CHILDREN’S LAWYER:

Mr Blayney

FILE NUMBER:

BRC

6180

2012

DATE DELIVERED:

29 August 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

28 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Taylor of counsel

SOLICITOR FOR THE APPLICANT:

Colville Johnstone Lawyers

FOR THE RESPONDENT:

Self-represented

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Blayney, Legal Aid Queensland

Order made on 28 August 2019

The Application in a Case filed by the respondent on 19 August 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 6180 of 2012

Ms Westlake

Applicant

And

Mr Westlake

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

On 28 August 2019 I dismissed the respondent father’s application for a stay and/or adjournment of the hearing of competing vexatious proceedings order applications and indicated that I would provide my reasons at a later time. These are my reasons.

brief background

By way of background, Ms Westlake and Mr Westlake are the parents of two children aged nine and seven respectively. The children live with the mother and have not seen the father since March 2014.
On 13 August 2019, I heard a discrete issue, namely, whether or not there had been a significant change of circumstances since the last trial in 2013 that would warrant a further trial of a parenting application. On 16 August 2019, I delivered my decision. I made an order dismissing the father’s application to vary the final parenting order (which would have involved a further trial) but granted the mother’s application to do so in order to reflect the current parenting arrangements.
The father has appealed against that order.

the father’s application for a stay

On 19 August 2019, the father filed an Application in a…

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: [2019] FamCA 608
Decision Date: 29 August 2019

CaseChat Overview and Summary

In *Westlake and Westlake (No 2)*, Carew J of the Family Court of Australia considered an application by the father for a stay or adjournment of proceedings concerning competing vexatious proceedings order applications. The mother and the independent children’s lawyer opposed this application. The father's request for a stay or adjournment was made pending the outcome of his appeal against a prior order that had dismissed his application to vary a final parenting order.

The central legal issue before the Court was whether the father had established a proper basis to warrant a stay or adjournment of the vexatious proceedings order applications. This required the Court to assess the merits of the father's application in light of the existing circumstances and the opposition from the other parties.

Carew J determined that the father had failed to demonstrate a sufficient legal or factual basis to justify the requested stay or adjournment. The Court applied principles relating to the granting of stays and adjournments in family law proceedings, considering the need for a strong case and the potential prejudice to the parties and the administration of justice. Ultimately, the Court found the father's application to be without merit.

The Court ordered that the application filed by the respondent on 19 August 2019 be dismissed.

Orders

Orders of the court

Order made on 28 August 2019

The Application in a Case filed by the respondent on 19 August 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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