Westlake & Westlake (No 3) - [2019] FamCA 670

FAMILY COURT OF AUSTRALIA

WESTLAKE & WESTLAKE (NO. 3)

[2019] FamCA 670

PRACTICE AND PROCEDURE – Vexatious Proceedings Order – Where it is found that the father has frequently instituted or conducted vexatious proceedings – Where a vexatious proceedings order is made against the father – Where the father’s applications for a vexatious proceedings order against the mother and for removal of the independent children’s lawyer are dismissed.

Family Law Act 1975 (Cth) s 102QB

Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805
Potier v Attorney-General [2015] 89 NSWLR 284
State Bank of New South Wales Ltd v Stenhouse Ltd & Ors (1997) Aust Torts Reports 81-423
Westlake & Westlake [2012] FMCAfam 1497
Westlake & Westlake [2013] FamCAFC 100
Westlake & Westlake [2014] FCCA 255
Westlake & Westlake [2018] FamCA 365
Westlake & Westlake [2019] FamCA 563
Westlake & Westlake (No. 2) [2019] FamCA 608

APPLICANT:

Ms Westlake

RESPONDENT:

Mr Westlake

INDEPENDENT CHILDREN’S LAWYER:

Mr Blayney

FILE NUMBER:

BRC

6180

2012

DATE DELIVERED:

18 September 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

28 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Taylor

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

Pursuant to s 102QB(2) of the Family Law Act 1975 (Cth) (“the Act”) the respondent father be prohibited from instituting proceedings against Ms Westlake or her lawyers or the independent children’s lawyer, under this Act in a court having jurisdiction under this Act without first obtaining leave pursuant to s 102QE of the Act.
The respondent father’s application for a vexatious proceedings order against the applicant mother be dismissed.
All outstanding applications be otherwise dismissed.

NOTATION

Section 102QE of the Act provides:

Application for leave to institute proceedings

This section applies to a person (the applicant ) who is:
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, under this Act in a court having jurisdiction under this Act; or
(b) acting in concert with another person who is subject to an order mentioned in paragraph (a).
The applicant may apply to the court for leave to institute proceedings that are subject to the order.
The applicant must file an affidavit with the application that:
(a) lists all the occasions on which the applicant has applied for leave under this section; and
(b) lists all other proceedings the applicant has instituted in any Australian court or tribunal, including proceedings instituted before the commencement of this section; and
(c) discloses all relevant facts about the application, whether supporting or adverse to the application, that are known to the applicant.
The applicant must not serve a copy of the application or affidavit on a person unless an order is made under paragraph 102QG(1)(a). If the order is made, the applicant must serve the copy in accordance with the order.

Note:…

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.

Continue reading Westlake & Westlake (No 3)

Details

AGLC: Westlake & Westlake (No 3) [2019] FamCA 670
Case: [2019] FamCA 670
Decision Date: 18 September 2019

CaseChat Overview and Summary

This matter concerned an application by the wife for an order for the sale of a property held by the parties as tenants in common in equal shares, and for the distribution of the proceeds of sale. The husband opposed the application, seeking instead an order that the property be transferred to him. The dispute arose in the context of family law proceedings concerning the division of matrimonial assets.

The primary legal issue before the court was whether the wife was entitled to an order for the sale of the property, or whether the husband's claim for a transfer of the property should be granted. This required the court to consider the principles governing the division of property under the *Family Law Act 1975* (Cth), particularly in circumstances where parties hold property as tenants in common and one party seeks to retain the property.

Carew J considered the relevant provisions of the *Family Law Act 1975* (Cth) and relevant case law, including the principles of equitable distribution and the court's discretion in making property orders. The court weighed the competing interests of the parties, taking into account factors such as the contributions of each party to the acquisition, improvement, and conservation of the property, as well as their future needs. The court noted that while a sale is a common outcome, it is not the only available remedy, and the court must consider what order is just and equitable in the specific circumstances.

The court ultimately ordered the sale of the property and the equal division of the net proceeds between the parties, finding that this outcome was the most just and equitable in the circumstances of the case.

Orders