Gin & Hing (No 9)
[2024] FedCFamC1F 29
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gin & Hing (No 9) [2024] FedCFamC1F 29
File number MLC 4528 of 2010 Judgment of WILSON J Date of judgment 2 February 2024 Catchwords FAMILY LAW – PARENTING – Stay application – applicant failed to meet relevant criteria – application failed Legislation Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited Aldam & Cesari [2020] FamCA 849
Aldrige & Keaton [2009] FamCAFC 106
Blakeley & Jaine [2020] FamCA 781
Commonwealth v Verwayen (1990) 170 CLR 394
Easom & Burhan [2020] FamCA 13
Gin & Hing (No 5) [2023] FedCFamC1F 63
Gin & Hing (No 6) [2023] FedCFamC1F 68
Gin & Hing (No 7) [2023] FedCFamC1F 116
In the Marriage of Clement (1981) FLC 013
Jackson & Balen [2009] FamCAFC 131
Jess & Jess (No 8) [2023] FedCFamC1F 395
Keskin & Keskin [2019] FamCA 830
Lovell v Lovell (1950) 81 CLR 513
Manesh & Manesh (No 2) [2020] FamCA 904
Mirren & Mirren (No 2) [2019] FamCA 742
Keevers & Keevers (No 2) [2022] FedCFamC1F 163
Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355
Velten & Velten (No 2) [2020] FamCA 542
Walton Stores (Interstate) v Maher (1988) 164 CLR 387
Whisprun Pty Ltd v Dixon (2003) 243 CLR 492
Zagar & Bacall [2020] FamCA 595
Division Division 1 First Instance Number of paragraphs 28 Date of last submission 30 January 2024 Date of hearing 30 January 2024 Place Melbourne Counsel for the applicant Mr D Mort Solicitors for the applicant GR Lawyers Counsel for the respondent Mr F Dixon SC Solicitors for the respondent Clancy & Triado Counsel for the Independent Children's Lawyer Mr D Whitchurch Solicitors for the Independent Children's Lawyer Macgregor Solicitors ORDERS
MLC 4528 of 2010 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR GIN
Applicant
AND MS HING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY
WILSON J
DATE OF ORDER
2 FEBRUARY 2024
THE COURT ORDERS THAT –
1.The application by the father made in his further amended application in a proceeding dated 25 January 2024 for a stay of the order made 22 November 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Gin & Hing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
On 22 November 2023 I handed down reasons for judgment following an unusually lengthy trial of this parenting case. The child, the subject of this litigation is 13 years of age. Her parents have been litigating aspects of her upbringing for the whole of her life.
A family consultant, Dr N, has been involved with the child and the child’s parents for most of the child’s life. At the trial of this proceeding, Dr N’s many family reports went into evidence as agreed exhibits at a time when the father was represented by senior counsel yet the father proceeded to cross-examine Dr N for several days with a view to demonstrating that Dr N was an unreliable witness whose evidence I should reject.
After reserving my decision for a few months, I acceded to orders being made in accordance with minutes formulated on behalf of the mother, the effect of which was to confer sole parental responsibility on the mother.
The father appealed against two paragraphs of my 22 November 2023 orders. He has sought a stay of my orders by further amended application in a proceeding sealed on 25 January 2024. No point was taken by Mr Dixon SC who appeared for the mother or by Mr Whitchurch who appeared for the independent children’s lawyer about the father’s appeal documentation having been filed in accordance with time limits prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
However, both Mr Dixon SC and Mr Whitchurch complained about the details of the father’s affidavit material filed in support of the father’s stay application. There was considerable merit in those complaints. The contents of the father’s affidavit made 21 December 2023 were mostly submissions in nature, recording the father’s views on the way the child is carrying out her day-to-day tasks subsequent to the judgment dated 22 November 2023. It was mostly devoid of admissible evidence capable of being utile on the hearing and determination of this stay application. Even recognising that the father is a litigant in person, the father took no steps when formulating his affidavit in support of his stay application to record factual matters that bore upon the legal criteria I was required to consider on this stay application. Mr Dixon SC submitted that the father’s 21 December 2023 affidavit was inadmissible on the basis that it was irrelevant, that it was made up of submissions or that it addressed matters beyond those that I needed to consider. There was considerable force in Mr Dixon’s and Mr Whitchurch’s submissions about the inadmissible nature of the father’s 21 December 2023 affidavit.
Central to the contentions of the father on this stay application was the father’s thesis that –
(a)Dr N had been suspended as a psychologist prior to my orders being pronounced;
(b)Dr N was biased against the father; and
(c)Dr N and the firm of solicitors representing the mother in this litigation had somehow conspired to engage in misconduct such that Dr N’s relationship with Clancy & Triado was not brought to the attention of me as the trial judge.
When Mr Mort explained those contentions in greater detail, it emerged that after my decision had been reserved upon completion of the evidence and all submissions in final addresses, in 2023 Dr N had allegedly been suspended from practising as a psychologist. The father is keen to advance in this litigation the argument that by reason of Dr N’s suspension, Dr N’s evidence in its totality should have been rejected by me or at least no weight attributed to it.
Several things must be said of that proposition urged by the father. First, at no stage throughout the lengthy trial of this proceeding was a single question put to Dr N about events anterior to or leading to her suspension. Next, at no stage was it ever suggested to Dr N that Melanie Wilson (allegedly a relative of Dr N) was a director of Clancy & Triado. Next, at no stage was Dr N ever questioned by the father on any matter bearing upon her professional conduct in this case. At best, the father persisted in some ill-considered assertion that Dr N was somehow bound by a code of conduct that applied to psychologists practising in the United States of America, a matter Dr N disputed. Next, for reasons I delivered ex tempore in Gin & Hing (No 6)[1] consent orders were made forbidding the father from questioning Dr N in relation to any allegation of apprehended bias. Further, after five days of cross-examination by the father of Dr N, at no stage was Dr N directly confronted with the father’s assertion that she had been or would be sanctioned for any ethical issue.
[1] [2023] FedCFamC1F 68.
Instead, not having previously raised the matter in any shape or form, the father contended on this stay application that I erred in not recognising that in 2023 Dr N’s entitlement to practise psychology was suspended. It must be at once pointed out that the father did not, at any time between the date on which judgment was reserved and the handing down of judgment, apply to re-open the case with a view to adducing any evidence about Dr N’s suspension, the grounds for it and the applicability of those grounds to the facts of this case. It was open to the father to have applied to re-open his case in this litigation. He chose to not avail himself of that opportunity and instead insists that somehow I erred I circumstances where no evidence whatsoever was adduced about Dr N’s professional standing to practise psychology.
Mr Mort conceded that no evidence was before me at trial about disciplinary issues concerning Dr N. That was true. No such evidence was adduced.
A very large number of cases have addressed legal principles to be applied on a stay application under the Family Law Act. For that matter, I have published a large number on point[2] in respect of stay applications following trials. The considerations of those applications differ to stay applications in respect of interlocutory orders, as I surveyed.[3]
[2] Mirren & Mirren(No 2) [2019] FamCA 742, Keskin & Keskin [2019] FamCA 830, Easom & Burhan [2020] FamCA 13, Velten & Velten (No 2) [2020] FamCA 542, Zagar & Bacall [2020] FamCA 595, Blakeley & Jaine [2020] FamCA 781, Aldam & Cesari [2020] FamCA 849, Manesh & Manesh (No 2) [2020] FamCA 904.
[3] Keevers & Keevers(No 2) [2022] FedCFamC1F 163 and in Jess & Jess (No 8) [2023] FedCFamC1F 395.
At Full Court level, several pronouncements have been made of the relevant criteria to be applied when a single judge entertains a stay application. Three are of present relevance, each having been argued by Mr Mort with considerable care and sophistication. The first was the 1980 decision In the Marriage of Clement,[4] the second being the more contemporary decision of Aldridge & Keaton[5] and the third being the Jackson & Balen[6] judgment which was handed down one and a half months after Aldridge & Keaton. While the decision in In the Marriage of Clement concerned different provisions of subordinate legislation, the decision was applied in Aldrige & Keaton seemingly reflective of its continued applicability in a parenting proceeding. In Aldrige & Keaton the court distilled into 11 propositions the principles it said applied arising from the general law (which I take to mean litigation not being litigation under the Family Law Act) as well as litigation in respect of a parenting proceeding under the Family Law Act.
[4] (1981) FLC 013.
[5] [2009] FamCAFC 106.
[6] [2009] FamCAFC 131.
That 11-point checklist was reduced to an eight point checklist in Jackson & Balen despite -
(a)the decision in Jackson being handed down no more than a month and a half later; and
(b)two our of three members of the court in Jackson being the same as in Aldridge (Boland & Gisford JJ).
Both in Jackson and in Aldridge it was held that the matters to be considered (I infer, whether eight or 11 in number) include and therefore are not limited to those recited by the court. Without repeating the guiding relevant criteria, relevantly paraphrased, the operative characteristics that call for recital are these –
(a)the applicant for the stay bears the onus of demonstrating the existence of a proper basis for the grant of the stay;
(b)exceptional circumstances for the grant of a stay need not be shown;
(c)the person holding the benefit of a judgment is entitled to presume the correctness of the judgment;
(d)the filing of an appeal is insufficient for the grant of a stay;
(e)the application must be made bona fides;
(f)a stay may be granted on terms;
(g)assessing whether the appeal may be rendered nugatory unless the stay is granted is a substantial factor to be considered;
(h)a preliminary assessment must be given of the strengths of the proposed appeal;
(i)it is desirable to limit the frequency in the change of a child’s living arrangements;
(j)relevant also is the speed with which the appeal can be heard; and
(k)the best interests of the child are a significant consideration.
Of those considerations, three featured most prominently on the hearing of the father’s stay application. The first was the father’s contention that the best interests of the child are a significant factor. The second was the mother’s contention that this stay application and appeal generally were not bona fide but instead were skirmishings by the father. The third was the mother’s contention that the so-called grounds of appeal were devoid of merit and represented little more than the father’s endeavour to reagitate factual matters that had been decided by me in the proper judicial exercise of my discretion, albeit adversely to the father.
Turning first to Mr Mort’s contention about the best interests of the child, underpinning nearly every aspect of application for a parenting order are best interest considerations. It accords with principles of statutory construction as adumbrated by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[7] for matters pertinent to the best interests of the child to be relevant to a stay application in respect of a parenting order.
[7] (1988) 194 CLR 355.
However, that is not to say that the mere fact that the father in this case advanced a proposal for orders that differed to those advanced by the mother necessarily means that the father’s proposed orders are in the best interests of the child. The father’s proposals were not accepted at trial. He bears the onus of persuading an appeal court of his entitlement to the orders he seeks in priority over the orders that have been made. That will necessarily involve a fact intensive examination of the lay and expert evidence adduced during the trial.
Whether the appeal court is willing to permit the father’s appeal to go forward on its current unstructured and repetitive grounds remains to be seen. Equally, it remains to be seen whether the mother in fact applies for an order for security for her costs of the appeal as foreshadowed by Mr Dixon SC.
Mr Mort contended that in addressing best interest considerations at trial, I erroneously relied at least in part on the evidence of Dr N in circumstances where Dr N was subsequently suspended from practising psychology and that such suspension impeached the veracity of her evidence as an expert. Aside from the fact that any such argument will fall for the consideration of an appeal court, having regard to the fact that no issue was raised before me about Dr N’s status as a practising psychologist at any stage of the trial, I am not willing to proceed on the basis that Dr N’s overall veracity as an expert witness in this case was impugned in the manner asserted by the father.
The second matter argued strongly was the mother’s contention that this stay application is bereft of bona fides. Mr Dixon SC argued (as did Mr Whitchurch) that the mother and father have been emmeshed in a pitch battle for nearly as long as the child has been alive and that this stay application along with the father’s appeal is no more than the current manifestation of the father’s unwillingness to accept the determination contrary to his proposals. Mr Dixon SC relied on the very many criticisms levelled by the father against Dr N in his grounds of appeal that Mr Dixon submitted represented a ‘rehashing’ (his word) of matter debated at length at trial.
Mr Dixon submitted that a collection of rulings were made, adverse to the father such as the ruling in relation to bias,[8] the ruling in relation to waiver and estoppel[9] and the ruling in relation to limiting the father’s closing submissions,[10] all of which the father now wishes to reagitate under the guise of a stay application or an appeal. To fully comprehend the mother’s contentions on this issue and on contentions about the grounds of appeal, it is necessary to examine – albeit in a high-level overview – the grounds of appeal the father advances. Mr Mort quite properly submitted that those grounds will require recasting because at present they are unduly prolix, they are repetitive, and in many instances they contain submissions rather than proper grounds of appeal. He was correct in that submission.
[8] [2023] FedCFamC1F 63.
[9] [2023] FedCFamC1F 68.
[10] [2023] FedCFamC1F 116.
A central ground of appeal, cast by the father in a variety of ways over several separate grounds, was his proposition that Dr N had been suspended from practising in 2023 and that such suspension was anterior to the date on which judgment was handed down in November 2023. As I have already narrated above, that issue was not the subject of evidence of any description during the trial. The father now contends on appeal, the point not having previously been put in issue, that my decision is somehow vitiated by reason of Dr N’s suspension from practice.
Mr Dixon SC, along with Mr Whitchurch, protested about the father being permitted to raise issues on appeal that were not raised at trial. They relied on the observations of the High Court in Whisprun Pty Ltd v Dixon[11]in which it was held that it would be adverse to the administration of justice if on appeal a party could raise a point not taken at trial. The High Court further held that nothing is more likely to give rise to a sense of injustice in a litigant than to have a decision reversed on a point that was not raised at trial in circumstances where that point might possibly have been met by rebutting evidence or by cross-examination.
[11] (2003) 234 CLR 492.
Mr Mort squarely conceded (as he had no option to do otherwise) that if the father intends to pursue on appeal issues connected with Dr N’s registration suspension, the father will probably be required to obtain leave to adduce fresh evidence on appeal. Whether the father will be granted leave to adduce fresh evidence on appeal, particularly when he took no step to attempt to adduce that evidence at trial, cannot be treated as a forgone conclusion.
To my mind, there was considerable merit in the arguments based on the High Court’s decision in Whisprun Pty Ltd v Dixon. It must not be overlooked that the trial in this proceeding ran for over 30 days. The father was given every opportunity to conduct his case as best he was able. The father focused in very considerable detail on his assertion that Dr N was biased against him. Among the asserted particulars of that alleged bias was the father’s complaint that Dr N had not complied with conduct prescribed by standards raised in an American professional body of psychologists. The father also pressed his contention that Dr N should not have given evidence having regard to events in November 2017. During a ruling delivered in this case[12] I examined the factual circumstances underpinning the father’s concerns about Dr N’s alleged bias. The following is a précis of my ruling –
(a)Dr N had been consulted when the child was very young;
(b)the father and mother wished Dr N to continue to assist them with their child;
(c)in July 2017 Dr N became aware that an issue was arising about Dr N’s views;
(d)on 6 July 2017, Dr N wrote a letter to both the father and mother declining to accept an appointment as a single expert in this litigation;
(e)the father and mother insisted that Dr N continued to assist them;
(f)by letter dated 16 November 2017 Dr N wrote to the father and mother stating that she would only continue to assist them if the father and mother consented to Dr N’s assessment and they consented to waive all rights to later assert any allegations about apprehended bias in any way in any context thereafter;
(g)both father and mother agreed; and
(h)the father subsequently attempted to cross-examine Dr N alleging apprehended bias.
[12] Gin & Hing (No 6) [2023] FedCFamC1F 68.
In reliance upon Walton Stores (Interstate) Pty Ltd v Maher[13] and Commonwealth v Verwayen,[14] I ruled that the father was not permitted to cross-examine Dr N alleging apprehended bias. The father consented to an order to that effect. Precisely how the father can assert bias by Dr N went unexplained. But suffice it to say that at no stage in the father’s treatment of Dr N’s evidence in this case did he ever raise, however tangentially, that Dr N’s status as a psychologist had been suspended or that I should not receive or consider Dr N’s evidence by reason of her suspension from practice.
[13] (1988) 164 CLR 387.
[14] (1990) 170 CLR 394.
So far as most other proposed grounds of appeal were concerned, Mr Dixon SC and Mr Whitchurch submitted that the father wishes to agitate in a different forum (on appeal) factual matters that in the proper exercise of my judicial discretion a determination was made adverse to the father. I pointed out to Mr Mort that the High Court in Lovell v Lovell[15] held that the mere fact that an appellate court may have exercised its discretion differently to the manner in which the trial judge exercised his or her discretion does not, in and of itself, mean that the trial judge’s discretion miscarried.
[15] (1950) 81 CLR 513.
In all the circumstances, I take the view that this stay application failed. I dismiss it.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 2 February 2024
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