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 of 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

1. 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

1. 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

1. 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.

2. 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.

3. The father has appealed against that order.

the father’s application for a stay

1. On 19 August 2019, the father filed an Application in a Case seeking the following order: (as per original)

   Stay on further proceedings in this matter until after Appeal from orders made 16 august is heard. To prevent a miscarriage of justice.

2. As the matter was already listed before me on 28 August 2019[1] to hear the competing applications by the mother and the father for a vexatious proceedings order to be made against the other, the father’s application for a stay was also listed for the same day.

   [1] See order made 13 August 2019.

3. At the commencement of the hearing on 28 August 2019, the father clarified that what he was intending to achieve by his application was for the hearing of the vexatious proceedings order applications to occur after the hearing of his appeal. He was not seeking to stay the operation of the order made on 16 August 2019, which is understandable given the order simply gives effect to the current situation that has been in place since March 2014 i.e. the father does not see the children. The father also clarified that he did not intend his application for a stay to impede the hearing of another application he has filed, namely, to discharge the independent children’s lawyer (“ICL”).

4. The mother and the ICL opposed the stay/adjournment of the hearing of the competing vexatious proceedings order applications. 

5. In support of his application for a stay/adjournment of proceedings, the father relied upon written submissions and a one paragraph affidavit in which he says:

   I have lodged an appeal from the orders of Justice Carew made 16 August 2019. It is self evident that a stay on further proceedings in this matter until after the appeal is heard is necessary to prevent further miscarriage of justice.

6. The father’s written submissions on this point commence with the following: (as per original)

   Realistically it does not matter what I write here as the court has already condemned the children and the Father to further the court’s slave trade. In effort to hide organised reduction of children to chattel property of the Mother.

7. The father’s written submissions continue for a further nearly nine pages. Regrettably, it is difficult to discern any basis for a stay/adjournment of the hearing of the vexatious proceedings order applications in the written submissions. The written submissions can perhaps best be described as a repetition of the father’s many complaints and grievances about the family law proceedings and domestic violence proceedings that he and the mother have been involved in over many years. Similar matters were addressed by the father in his material relied upon in support of his application that was dismissed by me on 16 August 2019.

8. The father spoke to his written submissions and, doing the best I can, I  identify the following bases for his application:

   a)The order of the 16 August 2019 has already been breached;[2]

   [2] Reference was made by the father to an alleged failure to pass on presents to the children by the mother. The order made 16 August 2019 did not make any order in relation to the provision of presents but left in place the 20 February 2014 order at paragraph 6 which provided that the father was at liberty to provide presents to a post office box supplied by the mother, the details for which the father is noted to have said in his material at the 13 August 2019 hearing had been supplied by the mother in February 2015.

   b)A vexatious proceedings order against either party will affect their ability to conduct the appeal in that:

   i)Their evidence will not been deemed credible;

   ii)It will introduce a bias against that party;

   iii)They will be deemed vexatious rather than seeking to obtain justice;

   c)If a vexatious proceedings order is made against the father, the mother can continue her coercive relationship with the children by preventing a relationship between the children and the father’s other children;

   d)The bias already demonstrated by the ICL against the father will become more entrenched if a vexatious proceedings order is made against the father;

   e)The father’s limited resources preclude him from going through each of the mother’s affidavits filed in the proceedings in order to demonstrate how she has systematically obstructed justice;

   f)There is no mechanism for the application of s 43 of the Family Law Act 1975 (Cth) (“the Act”) because there remains no relationship between the father and the children, and the children and the father’s other children.

applicable legal principles

1. The principles applicable to an adjournment application have been recently restated by the Full Court in Mertens & Mertens,[3] where Kent J said:

   The Court obviously has a wide discretion to grant adjournments but it is not a discretion which is unfettered. The Court should take into account the reasons for the adjournment, any period of delay in making the application, any prejudice or disadvantage to other parties that cannot be compensated by way of orders for costs and indeed, since decisions of the High Court, for example in Aon Risk Services v Australian National University [2009] 239 CLR 175, the effect also upon the Court and other litigants before the Court of the adjournment.

   The fundamental consideration is whether the adjournment is necessary to do justice as between the parties.

   Added to that which I have already observed, s 97 (3) of the Family Law Act 1975 (Cth) (“the Act”) imposes an obligation upon the Court to endeavour to ensure that proceedings are not protracted and the Family Law Rules 2004 (Cth) (“the Rules”) express objectives for cases to be resolved in a just and timely manner at a cost to the parties and to the Court which is reasonable in the circumstances of the case. I refer to, for example, r 1.04 of the Rules. Notably the Rules also impose responsibilities upon parties to proceedings. For example, r 1.08 imposes an obligation upon parties to ensure their readiness for court events; and to give notice as soon as possible of an intention to apply for an adjournment. ….

   [3] [2016] FamCAFC 136 at [3] – [5].

Discussion

1. Turning then to consider the bases outlined by the father in his oral submissions for the stay/adjournment outlined above:

   a)It is trite to observe that paragraph 6 of the 20 February 2014 order has been in place for a very long time. Paragraph 6 of the 2014 order granted the father liberty to send, to a post office box to be provided by the mother, a card and present on special occasions for the children. If it is the case that the order has in some way been breached by the mother, the father has had a very long time indeed to bring the matter back before the Court. In my reasons for judgement delivered on 16 August 2019, I refer to the father’s evidence that the mother had provided the post office box details in February 2015. I reject the father’s contention that an alleged breach of the 2014 order should prevent the hearing of the competing applications currently before the court or the making of a vexatious proceedings order. As is clear from s 102QB(2)(b) of the Act, the making of a vexatious proceedings order prevents the institution of proceedings as of right, although proceedings may be instituted if leave is granted pursuant to s 102QE;

   b)The hearing of the father’s appeal will focus on the ascertainment of appealable error, not on assessing evidence. I reject the father’s contention that if a vexatious proceedings order is made, his current appeal will proceed other than on its merits;

   c)I reject the father’s contention that a vexatious proceedings order against him will facilitate the mother continuing her allegedly coercive relationship with the children;

   d)I reject the father’s contention that a vexatious proceedings order against him will somehow entrench the ICL’s alleged bias against him;

   e)I interpret the father’s reference to his limited resources as relating to his inability to properly prepare his application for a vexatious proceedings order against the mother. I note that his application for that order was filed on 23 May 2017. Nothing in his submissions persuade me that he has not had either sufficient time to prepare or, alternatively, that more time would make any difference to his application;

   f)Section 43 of the Act provides:

   (1)The Family Court shall, in the exercise of its jurisdiction under this Act, and any other court exercising jurisdiction under this Act shall, in the exercise of that jurisdiction, have regard to:

   (a) the need to preserve and protect the institution of marriage as the union of 2 people to the exclusion of all others voluntarily entered into for life;

   (b)the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children;

   (c) the need to protect the rights of children and to promote their welfare;

   (ca)the need to ensure protection from family violence; and

   (d)the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to their children.

   (2)Paragraph (1)(a) does not apply in relation to the exercise of jurisdiction conferred or invested by Division 2.

   It is unclear to me how this section is relevant to the father’s application for a stay/adjournment.

conclusion

1. The father has failed to persuade me that a stay or adjournment of the hearing of the competing applications for vexatious proceedings orders is necessary to achieve justice as between the parties. Quite the contrary. In any event, there is greater utility in proceeding with the hearing so that, in the event one or both parties appeal any ultimate decision, they can seek to have the appeal consolidated with the father’s pending appeal.  

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 29 August 2019.

Associate: 

Date:  29.08.2019