Hopkins & Shorley

Case [2024] FedCFamC1A 221

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Hopkins & Shorley [2024] FedCFamC1A 221   

Appeal from: Hopkins & Shorley (No 3) [2024] FedCFamC2F 1059
Appeal number: NAA 171 of 2024
File number: TVC 539 of 2011
Judgment of: SCHONELL J
Date of judgment: 27 November 2024
Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant husband seeks leave to appeal from child support orders – Application of Medlow & Medlow (2016) FLC 93-692 – Where the applicant has not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal – No substantial injustice established if leave is refused – Where the appeal is otherwise without merit – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum.
Legislation:

Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth) s 117

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28(1)(i)(a), 35

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158

Hopkins & Walker [2013] FamCA 616

Lorde & Chu [2014] FamCAFC 228

Medlow& Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207

Pascoe & Larsen (No 2) [2022] FedCFamC1A 126

Warbrick & Warbrick (No 2) (2021) FLC 94-030; [2021] FamCAFC 101

Walker & Hopkins [2004] FamCA 1105
Number of paragraphs: 38
Date of hearing: 22 November 2024
Place: Sydney, via audiovisual link
Counsel for the Applicant: Self-represented litigant
Counsel for the Respondent: Self-represented litigant
Amicus Curiae for the Child Support Registrar: Mr Dennis

ORDERS

NAA 171 of 2024
TVC 539 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR HOPKINS

Applicant
AND:

MS SHORLEY

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

27 NOVEMBER 2024

THE COURT ORDERS THAT:

1.Leave to appeal is refused.

2.The Application in an Appeal filed 5 November 2024 is dismissed.

3.The Notice of Appeal filed 8 July 2024 is dismissed.

4.The appellant pay the respondent’s costs fixed in the sum of $752.50 within two months of the date of this order.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved…

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AGLC
Hopkins & Shorley [2024] FedCFamC1A 221
Case
[2024] FedCFamC1A 221
Decision Date

CaseChat Overview and Summary

In the appeal of Hopkins & Shorley, Mr Hopkins sought leave to appeal child support orders made by the Family Court. The dispute between the parties had a long history, extending over nearly 30 years. Despite the children having reached majority, Mr Hopkins continued to pursue legal action against Ms Shorley. The key legal issue before the court was whether the applicant had demonstrated sufficient doubt in the primary judge's decision to warrant the grant of leave to appeal. The court also considered whether a substantial injustice would result if leave to appeal were refused, and whether the appeal had any merit. The court found that Mr Hopkins had not shown that there was sufficient doubt in the primary judge's decision to justify leave to appeal, and that no substantial injustice would result if leave were refused. The court further found that the appeal was without merit.

The court applied the principles established in Medlow & Medlow (2016) FLC 93-692 to assess whether leave to appeal should be granted. It held that Mr Hopkins had not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal. The court found that there was no substantial injustice if leave were refused, as the children had already attained their majority and the primary judge's decision was well reasoned. The court also found that the appeal was otherwise without merit, as there were no grounds for appeal that had not already been considered by the primary judge. Accordingly, the court refused leave to appeal, dismissed the appeal, and ordered the appellant to pay the respondent's costs in a fixed sum.

Orders

Orders of the court

NAA 171 of 2024

TVC 539 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HOPKINS

Applicant

AND:

MS SHORLEY

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

27 NOVEMBER 2024

THE COURT ORDERS THAT:

1. Leave to appeal is refused.

2. The Application in an Appeal filed 5 November 2024 is dismissed.

3. The Notice of Appeal filed 8 July 2024 is dismissed.

4. The appellant pay the respondent’s costs fixed in the sum of $752.50 within two months of the date of this order.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Each of the appellant and respondent appeared in person and Mr Dennis appeared for the Child Support Registrar as amicus curiae. Beyond appearing, Mr Dennis took no part in the appeal.BACKGROUND The parties the subject of the appeal have been engaged in litigation for nearly 30 years in relation to their children and child support. Despite the children having attained their majority, the appellant persists with litigation. Over 20 years ago, Warnick J in Walker & Hopkins [2004] FamCA 1105 observed: 75.I accept that, from the [appellant]’s point of view, he had a certain desperation to be involved in meaningful ways in the children’s lives. 76.However, to the extent that it may be necessary to do so and based particularly on the letters written by the [appellant] which are in evidence, but also having regard to the evidence of the [respondent], I find that the [appellant] has unremittingly dealt with the [respondent] in a controlling, overbearing, offensive, aggressive and demeaning way. 77.I accept all that the [respondent] says of the impact on her of the litigation and ongoing interaction with the [appellant] about the children, over the last 9 years. It may be that because of hypersensitivity the [respondent] at times overreacts to actions of the [appellant] or leaps to assumptions, but the overall tenor of what has happened in this case is beyond dispute. 78.I accept her evidence as to the degree of distress and upset and the longevity of it for the children, arising from the [appellant]’s retention of the children last July 2003.…84.However, from the outset of the trial until the final moments, the declared position of the [appellant] moved considerably and I accept that, through his undertakings and instructions to his counsel, he did whatever he could to indicate an intention not to pursue the litigious and assertive path that he has in the past, true it is that he was represented by very experienced counsel and I infer that advice from his counsel contributed to the position taken by the [appellant]. To some extent one wonders whether, away from the glare of the courtroom and the likely guiding influence of counsel, the [appellant] will have the same impetus to adhere to his stated intentions. On the other hand, he is at least an assertive man and though it may be that before he gave significant instructions he received advice rather than develop his own intentions. That does not mean that he has not, in accepting that advice, demonstrated a significant change of attitude. 85.I consider that, as a result of the [appellant]’s stance in this case, the situation between the parties is new. There is a reasonable chance that most, if not all, of the manifestations of conflict between them will not be repeated. The reference to undertakings included one given by the husband to the Court on 4 June 2004 not to bring any proceedings pursuant to the Child Support (Assessment) Act 1989 (Cth) without first obtaining leave. Any expressed hope by his Honour that there had been a change in approach proved to be short lived. The husband commenced further proceedings in 2005 and 2006. An appeal was dismissed by the Full Court in February 2007. Further litigation ensued in 2007 and again in 2011 and 2012.

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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