Westwell & Anor and Westwell (No2)

[2017] FamCA 362

FAMILY COURT OF AUSTRALIA

WESTWELL AND ANOR & WESTWELL (NO2) [2017] FamCA 362

FAMILY LAW – PRACTICE & PROCEDURE – Appointment of a case guardian – Removal of party to the proceedings – Subpoenas

FAMILY LAW – CONTRAVENTION
FAMILY LAW – INJUNCTION

Family Law Act 1975 (Cth)

APPLICANT: Ms Westwell

SECOND APPLICANT: Ms Peake

RESPONDENT: Mr Westwell

INDEPENDENT CHILDREN’S LAWYER: Ms C Naidu

FILE NUMBER: CAC 1014 of 2016

DATE DELIVERED: 24 May 2017

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:	No appearance
SOLICITOR FOR THE SECOND APPLICANT:	Self-representing
SOLICITOR FOR THE RESPONDENT:	Ms Smith, Western Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Claire Naidu & Co

Orders

1. The application filed by Ms Peake to be appointed as Ms Westwell’s case guardian is refused. 

2. Ms Peake be removed as a party to the proceedings in respect of the property proceedings. 

3. Ms Peake may remain a party to the proceedings in respect of the children’s proceedings.   

4. The contravention application filed by Ms Peake on 18 April 2017 is dismissed.

5. The application of the respondent seeking an injunction on Ms Peake is dismissed.

6. Ms Peake comply with the Rules in respect of the issuing of subpoenas by self-represented litigants which requires her to obtain the permission from the Registrar before an application is made to a Judge for the issue of the subpoenas.

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 Westwell & and Anor & Westwell 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 CANBERRA

FILE NUMBER: CAC 1014 of 2016

Ms Westwell

Applicant

And

Ms Peake
Second Applicant

And

Mr Westwell

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

Case Guardian

1. Ms Peake applies to the Court to be appointed as Case Guardian for her daughter, Ms Westwell.  Ms Peake has identified the material that she relies upon in support of that application that includes material filed on behalf of the father from [80] and following in his affidavit filed 10 May 2017, being the portion of his affidavit that is headed “[Ms Peake’s] conduct since 20 March 2017”.  There Ms Peake relies upon an assertion that is attributed to her that Ms Westwell has spent time in a psychiatric ward.[1] Ms Peake also relies upon her affidavit filed 18 April 2017 particularly under the heading “My application for case guardian for my daughter” which runs from [18] to [29]. Paragraph 18 was struck out as was the first phrase of [23]. Additionally, Ms Peake relies upon exhibit A1 in today’s proceedings.

   [1] See [83] of that affidavit in particular

2. Exhibit A1 is a Centrelink document being a certificate provided by a Dr B on 10 March 2017 which notes as a primary condition diagnosis for Ms Westwell a diagnosis of anxiety/depression and recorded below that is that it is a temporary condition and recorded below that that the symptoms are all criteria in DSM-V.  It is said to mean that Ms Westwell is unable to study or unable to perform more than eight hours work per week. 

3. The Rules contained at Part 6.3 of the Family Law Rules 2004 set out circumstances where there may be a case guardian appointed in proceeding. The pivotal fact underpinning the appointment of a case guardian is that the person have a disability. Ms Peake had drawn my attention to those Rules and in particular to the dictionary to the Rules which sets out what is meant by a person with a disability. That dictionary definition within the Rules is as follows:

   A person with a disability in relation to a case means a person who because of a physical or mental disability:

   a.Does not understand the nature or possible consequences of the case; or

   b.Is not capable of adequately conducting or giving adequate instruction for the conduct of the case.

4. Unfortunately Ms Peake’s application is supported by no evidence that has the capacity to show that Ms Westwell either does not understand the nature or possible consequences of the case or is not capable of adequately conducting or giving adequate instruction for the conduct of the case.  The evidence presented in relation to this matter does not have the capacity to reach such a threshold. 

5. Accordingly, I dismiss the application for Ms Peake to be appointed as Ms Westwell’s case guardian. 

the question of whether or not Ms Peake should remain a party to the property proceedings

1. Directions were given on 20 March 2017 and the following order was made:

   IT IS ORDERED THAT

   2.By close of business on 18 April 2017 [Ms Peake] file and serve upon each of the parties and the Court a document that outlines what factual matters in relation to [Suburb C] and what legal principles she says apply in relation to the transactions involving [Suburb C] that mean that she has an ongoing equitable interest in the property of [Ms Westwell] or [Mr Westwell].

2. Ms Peake filed and served an affidavit on 18 April 2017 which she has relied upon today as being compliant with those directions. The most relevant portion of that affidavit occurs at [30] – [36]. There is a generalised assertion made there that some sort of fraud has been perpetrated by Mr Westwell upon Ms Peake in relation to transactions involving the transfer of Suburb C from Ms Peake into his name. Ms Peake today asserted from the bar table that she signed the transfer into his name indicating some degree of knowledge that it was being signed directly into his name. When asked how the material that she has filed on 18 April 2017 met the direction that she was given, in particular how it is that it identified the fraud which is generally asserted, Ms Peake sought to rely upon further affidavit material being the trial affidavit that she had previously prepared and swore on 9 December 2016, and that Ms Westwell swore on 8 December 2016. Ms Peake’s affidavit of 9 December 2016 at [57] and following, relying in particular on [57] and [68], again asserts in general terms a fraud. The affidavit of Ms Westwell at [21f], [73] and following, and in particular [76], was read by Ms Peake again in support of her assertion that there was a fraud. Despite having referred to these additional materials there is still no disclosure of the particular facts that are said to constitute the fraud.

3. At this point in the proceedings, after being given an opportunity to identify the facts that would found some ongoing legal interest on the part of Ms Peake, and the legal principles that would support those facts establishing a legal interest Ms Peake has failed to set out the facts that she would rely upon to establish such an interest.  Failure to do so leaves me in a position that not only has Ms Peake been non-compliant with directions that required her to identify those factual matters and legal principles but the failure to do so leaves me with a view that her applications in respect of the property and her joinder to the property proceedings to argue those applications have no reasonable prospects of success. 

4. Accordingly, I direct that Ms Peake be removed as a party to the proceedings in respect of the property proceedings. 

Ms Peake to remain a party to the children’s proceedings

1. That leaves open the question of her involvement in respect of the proceedings in so far as they deal with the children. 

2. The solicitor for the father withdraws any application to summarily dismiss applications made by Ms Peake in respect of the children and acknowledges that she is a proper party to the children’s proceedings.  Ms Peake may remain a party to the children’s proceedings although she will be required to identify what orders she seeks in the children’s proceedings.

Contravention application filed 18 April 2017

1. The application was styled to allege the contravention of an order or bond to be dealt with under Part 13A.  Ms Peake has acknowledged that there is no breach of an order that she is seeking to have Mr Westwell dealt with in relation to.  The complaint that Ms Peake makes is that the content of a portion of his affidavit material is untrue.  The application that is made under Part 13A must relate to the contravention of an order or bond.  Given that that is not what is alleged here, the application is misplaced and is dismissed.

Oral application for injunction

1. An injunction has been applied for on behalf of the father by way of oral application this morning.  The oral application is based upon material contained in the father’s affidavit filed 24 May 2017.  It is unclear why the matter was dealt with by way of an oral application. 

2. In any event, the basis for the application is a concern raised that Ms Peake has made contact with people in the D Town region in relation to the family law proceedings.  More specifically, that she has made contact with the father’s former partner, Ms E and a person who is a parent of one of the friends of one of the children of the relationship, F.  As part of that communication what has allegedly been said to the parent of the friend of F was that F had been abducted, that her father is violent and that her mother has spent time in a psychiatric ward.  There is evidence to say that F felt humiliated and that the father is concerned about publication of these matters in the D Town region. 

3. The application for restraint is in broad terms and is seen at page 27 of the application of the father.  It is an application that is in such broad terms that it would prohibit Ms Peake from discussion of any matter concerning the proceedings with almost anybody whatsoever.

4. As a party in the proceedings in relation to the children’s matter it is important that Ms Peake is able to speak to potential witnesses in the proceedings.  The father’s former partner is a potential witness in the proceedings.  At this stage I do not know precisely how the other person spoken to might or might not constitute a witness in the proceedings.  While it is highly undesirable that F should be embarrassed or humiliated by discussions with third parties I am not satisfied that the basis for the obtaining of an injunction is made out.  It is necessary for the granting of such an injunction that it be demonstrated to be necessary and that the terms of the injunction are what are necessary to obtain the objectives of the injunction.  Again, while it is undesirable that F might be humiliated, the scope of the injunction is so broad as to potentially undermine the conduct of the proceedings by undermining the capacity of Ms Peake to obtain appropriate evidence in proceedings. 

5. I decline to grant the injunction.

Subpoenas

1. On the previous occasion Ms Peake sought the Court’s permission for the issue of subpoenas.  Her role in the proceedings has changed since that application was made.  I direct that Ms Peake comply with the Rules in respect of the issuing of subpoenas by self-represented litigants which requires her to obtain the permission from the Registrar before an application is made to a Judge for the issue of the subpoenas.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 24 May 2017.

Associate: 

Date:  29 May 2017