WESTLAKE & WESTLAKE - [2020] FamCAFC 26

FAMILY COURT OF AUSTRALIA

WESTLAKE & WESTLAKE

[2020] FamCAFC 26

FAMILY LAW – APPEAL – PRACTICE & PROCEDURE – Where the father’s appeals are listed for consideration of dismissal pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where the father was ordered to file amended Notices of Appeal – Where the grounds of appeal do not demonstrate any appellable error by the primary judge and they have no reasonable chance of success – Appeals dismissed.

FAMILY LAW – APPEAL – APPLICATIONS IN AN APPEAL – Where the father sought to adduce further evidence in the appeal – Where the further evidence relates first to court recordings of the father’s prior proceedings and videos and secondly to submissions made to a parliamentary enquiry – Where the applications do not meet the requirements for the receipt of further evidence – Applications dismissed.

FAMILY LAW – APPEAL – COSTS – Where the mother sought costs against the father – Where the father has been wholly unsuccessful – Where the parties’ financial circumstances do not prevent a costs order being made – Where the father is to pay the mother’s costs in a fixed sum.

Family Law Act 1975 (Cth) ss 96AA, 102QB, 117

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Dairy Farmers Co-operative Milk Co Ltd v Acquilina (1963) 109 CLR 458; [1963] HCA 59
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Rice and Asplund (1999) FLC 90-725
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

APPELLANT:

Mr Westlake

RESPONDENT:

Ms Westlake

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid QLD

FILE NUMBER:

BRC

6180

2012

FIRST APPEAL NUMBER:

NOA

2019

SECOND APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

4 February 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Strickland, Watts & Tree JJ

HEARING DATE:

4 February 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 August 2019; 18 September 2019

LOWER COURT MNC:

[2019] FamCA 563; [2019] FamCA 670

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:	Ms Carmody
SOLICITOR FOR THE RESPONDENT:	Cherry Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid QLD

Orders

The amended Notices of Appeal in appeal numbers NOA 76 of 2019 and NOA 93 of 2019 filed on 13 November 2019 be dismissed.
The Applications in an Appeal filed on 6 January 2020 and 24 January 2020 be dismissed.
The father pay the costs of the mother fixed in the sum of $2,000.

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

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 [2020] FamCAFC 26
Case: [2020] FamCAFC 26
Decision Date: 4 February 2020

CaseChat Overview and Summary

The matter of Westlake & Westlake involved the father appealing a decision from the Family Court. The father sought to challenge the dismissal of his initial appeals against the Family Court's orders concerning his children. The appeals were listed for consideration of dismissal under section 96AA of the Family Law Act 1975 (Cth). The court had previously ordered the father to file amended Notices of Appeal. The legal issues before the court were whether the amended grounds of appeal demonstrated any appellable error and had a reasonable chance of success, as well as whether the father's applications to adduce further evidence met the requisite standards.

The court found that the father's amended grounds of appeal did not demonstrate any appellable error and had no reasonable chance of success. The court further determined that the father's applications to adduce further evidence were not compliant with the requirements for receiving additional evidence in an appeal. The father's attempts to introduce recordings of prior proceedings and videos, as well as submissions made to a parliamentary enquiry, were deemed inadmissible as they did not meet the criteria for new evidence.

Consequently, the court dismissed both the father's appeals and his applications to adduce further evidence. The mother's application for costs was successful, given the father's complete lack of success in the proceedings. The court ordered the father to pay the mother's costs in the fixed sum of $2,000. This order was to be formally entered in the Court's records.

Orders

Orders of the court

The amended Notices of Appeal in appeal numbers NOA 76 of 2019 and NOA 93 of 2019 filed on 13 November 2019 be dismissed.

The Applications in an Appeal filed on 6 January 2020 and 24 January 2020 be dismissed.

The father pay the costs of the mother fixed in the sum of $2,000.

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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