WESTLAKE & WESTLAKE - [2018] FamCA 365

FAMILY COURT OF AUSTRALIA

WESTLAKE & WESTLAKE

[2018] FamCA 365

FAMILY LAW – PRACTICE AND PROCEDURE – Transfer of Proceedings – Where the Father brought an Application in a Case for leave to remove this cause to the High Court of Australia – Where the father does not need leave of the Family Court of Australia to apply to the High Court as provided for in Part 25 or Part 26 of the High Court Rules (Cth).

FAMILY LAW – INTERVENTION AND COMPLAINT – Attorneys-General – Where the Father brought an Application in a Case for leave to make another request to the Attorneys-General of the Commonwealth and Queensland to complain about the Legal Aid Office and intervene in the proceedings – Where notice has already been provided and the Attorneys-General have chosen not to intervene – Where a duty imposed by s 78B of the Judiciary Act 1903 (Cth) does not arise because the proceedings do not involve a matter arising under the Constitution or involving its interpretation.

FAMILY LAW – PRACTICE AND PROCEDURE – Publication Orders – Where the Father brought an Application in a Case seeking leave to inform and discuss the matter with certain individuals – Where the father is not required to obtain leave to communicate with Her Majesty Queen Elizabeth II and the Queensland Minister for Child Safety – Where the father is not able to discuss matters with the Hon Julia Gillard and Mr Erikson that would contravene s 121 of the Family Law Act 1975 (Cth).

FAMILY LAW – COSTS – Where the mother makes an application for costs and the ICL does not – Where impecuniosity is no reason to prevent costs being ordered against a party to proceedings in this Court – Where the father was wholly unsuccessful in all respects – Where the father pay the mother a fixed amount towards her costs of and incidental to his wholly unsuccessful application.

Family Law Act 1975 (Cth), s 117, s 121
Family Court Rules 2004 (Cth), Schedule 3

High Court Rules 2004 (Cth), Part 25 and 26

Judiciary Act 1903 (Cth), s 33, s 40, s 78A, s 78B

APPLICANT:

Mr Westlake

RESPONDENT:

Ms Westlake

INDEPENDENT CHILDREN’S LAWYER:

Mr Blayney

FILE NUMBER:

BRC

6180

2012

DATE DELIVERED:

24 May 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

14 May 2018

REPRESENTATION

APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Mr Settgast

Colville Johnstone

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Blayney
Legal Aid Queensland

Orders

The Application in a Case filed by the father on 8 March 2018 is dismissed.
The Applicant father shall pay the Respondent mother the sum of $500 on account of her costs of and incidental to the dismissed Application in a Case.

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…

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 [2018] FamCA 365
Case: [2018] FamCA 365
Decision Date: 24 May 2018

CaseChat Overview and Summary

In the matter of *Westlake & Westlake*, Forrest J of the Family Court of Australia considered an application filed by the father. The father sought various orders, including leave to remove the proceedings to the High Court of Australia, leave to request the Attorneys-General of the Commonwealth and Queensland to complain about the Legal Aid Office and intervene in the proceedings, and leave to inform and discuss the matter with certain individuals. The mother sought costs.

The primary legal issues before the court were whether the father required leave to apply to the High Court, whether a duty arose under s 78B of the *Judiciary Act 1903* (Cth) requiring notification to the Attorneys-General, whether the father needed leave to communicate with specific individuals, and whether the father should be ordered to pay the mother's costs.

Forrest J determined that the father did not require leave from the Family Court to apply to the High Court. The court also found that no s 78B duty arose as the proceedings did not involve a matter arising under the Constitution or its interpretation, noting that the Attorneys-General had previously been notified and chosen not to intervene. Regarding communication, the father was not required to obtain leave to communicate with Her Majesty Queen Elizabeth II and the Queensland Minister for Child Safety, but he was prohibited from discussing matters with the Hon Julia Gillard and Mr Erikson that would contravene s 121 of the *Family Law Act 1975* (Cth). The court held that impecuniosity was not a bar to ordering costs and that the father, having been wholly unsuccessful, should pay the mother's costs.

Consequently, Forrest J dismissed the father's application in a case and ordered the father to pay the mother $500 on account of her costs.

Orders

Orders of the court

The Application in a Case filed by the father on 8 March 2018 is dismissed.

The Applicant father shall pay the Respondent mother the sum of $500 on account of her costs of and incidental to the dismissed Application in a Case.

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

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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