WESTLAKE & WESTLAKE - [2019] FamCA 563

FAMILY COURT OF AUSTRALIA

WESTLAKE & WESTLAKE

[2019] FamCA 563

FAMILY LAW – CHILDREN – Where final parenting orders were made in February 2014 after a defended hearing – Consideration of the principles in Rice & Asplund (1979) FLC 90-725 – Where the trial judge found that the father posed a risk of emotional harm to the children due to his beliefs about the mother and inability to foster the children’s relationship with the mother – Where the trial judge found that the children needed to be protected from the father’s beliefs and imposed long term supervision – Where the supervisor withdrew its services in March 2014 and the father has not seen the children since then – Where there is no evidence to suggest that the father’s beliefs about the mother have changed – Where there has not been a significant change in circumstances to warrant a reconsideration of the current order – Where further litigation would not be in the best interests of the children – Where the 2014 parenting order is varied to reflect the reality of the children’s situation and applications by the mother and father to vary/discharge the order are otherwise dismissed.

Family Law Act 1975 (Cth)

Bennett & Bennett (1991) FLC 92-191
Carriel & Lendrum (2015) FLC 93-640
Doherty & Doherty [2016] FamCAFC 182
Miller & Harrington (2008) FLC 93-383
Poisat & Poisat (2014) FLC 93-597
Rice & Asplund (1979) FLC 90-725
SPS & PLS (2008) FLC 93-363

APPLICANT:

Ms Westlake

RESPONDENT:

Mr Westlake

INDEPENDENT CHILDREN’S LAWYER:

Mr J. Blayney

FILE NUMBER:

BRC

6180

2012

DATE DELIVERED:

16 August 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

13 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms K. Oakley

SOLICITOR FOR THE APPLICANT:

Colville Johnstone Lawyers

FOR THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms R. Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Order

It is ordered that:

Paragraphs 4 and 5 of the order made by the Federal Circuit Court on 20 February 2014 (“the 2014 parenting order”) be discharged and substituted with the following:
That the father not spend time with the children, X born … 2009 and Y born … 2011.
The competing applications by the mother and the father for variation and/or discharge of the 2014 parenting order be otherwise 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:…

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

AGLC: WESTLAKE & WESTLAKE [2019] FamCA 563
Case: [2019] FamCA 563
Decision Date: 16 August 2019

CaseChat Overview and Summary

In *Westlake & Westlake*, Carew J considered applications to vary or discharge final parenting orders made in February 2014 following a defended hearing. The original orders had been made after the trial judge found the father posed a risk of emotional harm to the children due to his beliefs about the mother and his inability to foster the children's relationship with her. The judge had imposed long-term supervision to protect the children from these beliefs.

The central legal issue before the court was whether there had been a significant change in circumstances since the 2014 orders were made to warrant a reconsideration of those orders, particularly in light of the supervisor withdrawing services in March 2014 and the father having had no contact with the children since that time. The court also had to consider the best interests of the children in determining the applications.

Carew J applied the principles established in *Rice & Asplund* (1979) FLC 90-725, which govern the reconsideration of final parenting orders. The court found no evidence to suggest that the father's beliefs about the mother had changed. Consequently, it was determined that there had not been a significant change in circumstances to justify varying the existing orders. Furthermore, the court concluded that further litigation would not be in the best interests of the children.

The court ordered that paragraphs 4 and 5 of the 2014 parenting order be discharged and substituted with an order that the father not spend time with the children. The competing applications by both the mother and the father for variation and/or discharge of the 2014 parenting order were otherwise dismissed.

Orders

Orders of the court

Order

It is ordered that:

Paragraphs 4 and 5 of the order made by the Federal Circuit Court on 20 February 2014 (“the 2014 parenting order”) be discharged and substituted with the following:

That the father not spend time with the children, X born … 2009 and Y born … 2011.

The competing applications by the mother and the father for variation and/or discharge of the 2014 parenting order be otherwise 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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