Markwell & Ranwick (No 2)
[2023] FedCFamC2F 846
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Markwell & Ranwick (No 2) [2023] FedCFamC2F 846
File number(s): CAC 1533 of 2014 Judgment of: JUDGE W J NEVILLE Date of judgment: 13 July 2023 Catchwords: FAMILY LAW - Parenting – stay application prior to appeal – Mother’s consistent failure to provide details regarding the Grounds of Appeal (e.g. no reference to any paragraph in the judgment under appeal, or any particulars provided) made the Application almost futile and an abuse of process – Application almost an exercise in a guessing game to work out what the Mother was alleging and the evidence relied upon – long history of contest between the parties including the Mother’s almost incessant need to litigate and to rely upon arguments and material that is patently inaccurate if not false – Application dismissed with costs but which are stayed pending the finalisation of the Appeal. Legislation: Family Law Act 1975 (Cth), s.117(2) Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson v Senior (Stay Appeal) [2013] FamCAFC 152 (2013) 279 FLR 399; (2014) 50 Fam LR 21
CDJ v VAJ (1998) 197 CLR 172
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577
Gronow & Gronow (1979) 144 CLR 513
Jennings Construction Ltd v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681
K & B [2006] FamCA 848; (2006) FLC 93-288.Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427
Sigley v Evor (2011) 44 Fam LR 439
Smits v Roach (2006) 227 CLR 423
Stephens v Stephens (2011) 44 Fam LR 117
Vakauta v Kelly (1989) 167 CLR 568
Division: Division 2 Family Law Number of paragraphs: 53 Date of hearing: 3 July 2023 Place: Canberra The Applicant Self-represented Solicitor for the Respondent: Chamberlains Law Firm ORDERS
CAC 1533 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS MARKWELL
Applicant
AND: MR RANWICK
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
13 JULY 2023
THE COURT ORDERS THAT:
1.The Application in a Proceeding filed 23rd June 2023 by the Applicant be dismissed.
2.The Applicant must pay the costs of the Respondent fixed in the sum of $2,093.62 by no later than 4.00 pm on 11 October 2023.
3.Order 2 is stayed by the Court pending the finalisation of the Appeal. If the Appeal is dismissed, the 90 days for the payment of costs shall run from the date of the dismissal of the Appeal.
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 Markwell & Ranwick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
This matter commenced in 2014. At that time, it involved the Applicant Mother and her first partner (Mr Solberg), with whom she had one child, B. That relationship foundered, and she met and had a child with the Respondent, Mr Ranwick, D, in 2017 who is the only child the subject of the current litigation.
More often than not, the Mother has been, and remains, a self-represented litigant. Although not legally trained, obviously over the course of the innumerable iterations of the litigation both at first instance and before the Full Court on a number of occasions, she has developed much skill as an advocate on her own behalf, although she often “plays”, so to speak, on her self‑represented status.
The more detailed history of the contests between the Mother and her two former partners has been told in multiple judgments, at first instance, and in various appeal judgments. Most recently, there is a potted history and chronology in the judgment under appeal, which I delivered on 15th May 2023. Because of those histories and their relatively easy availability, I need not, and will not repeat them.[1]
[1] Solberg & Markwell [2023] FedCFamC2F 552
As just noted, the Mother has appealed the judgment and Orders dated 15th May 2023. These reasons relate to the Mother’s Application, filed 23rd June 2023, by which she seeks a stay of those Orders.
The Notice of Appeal runs to 40 separate Grounds of Appeal. They are annexed to these reasons. Curiously, there is no Ground of appeal in relation to the Costs Order made against her. A copy of them is Appendix A to these reasons. At the hearing of the Mother’s Stay Application, she indicated to the Court (and the Father’s lawyer), for the first time, that these Grounds would be revised somewhat – which rather made the hearing of the stay a tad problematic, for the Father and for the Court. When asked to explain or indicate how or in what way the Grounds of Appeal would be revised, the Mother said that there would not be much change, inferring that such changes might only be perhaps some refinement of style or expression. Such late-breaking and in the absence of content, made the exercise even more akin to a judicial guessing-game.
In any event, plainly, no one knew the precise parameters of the Mother’s Grounds of Appeal. Given that a regular complaint the Mother makes in her Grounds of Appeal is a purported “lack of procedural fairness”, there is more than a touch of irony, as well as almost insouciant chutzpah, that she would be so unconcerned about advising the Court and the Father at the start of the hearing that is fixed to examine the Ground of Appeal that they are to be revised. Apparently, principles of procedural fairness do not apply to the Mother.
The hearing of the stay Application was further hampered because in neither her Application, Affidavit in support, nor in her written (or oral) submissions, did the Mother refer to any specific paragraphs of the decision under appeal. To state the obvious: without specific references to particular paragraphs or sections of the judgment, as already noted, it really became something of an exercise in guesswork in trying to work out what the Mother’s specific complaints referred to.
A further, general observation of a number of the Grounds of Appeal is that they are simple assertions, unsupported by any particulars, either from the judgment or in any of the Mother’s material. For example, the first three Grounds of Appeal simply assert that I “failed to afford the Mother procedural fairness” (Ground 1), “erred by demonstrating apprehended bias in favour of the Second Respondent Father” (Ground 2), and “erred by viewing the matter prejudicially leading to erroneous orders” (Ground 3). No particulars of any sort are provided. The same is true of Ground 10, which states that I “erred by exercising actual and/or apprehended bias.”
Some Grounds of Appeal are repeated (e.g. Grounds 25 & 26). Others refer to the apparent bias in favour of “both Fathers” in circumstances where the only matters before the Court related to Mr Ranwick and his daughter D. No relief was sought by or against Mr Solberg in relation to his daughter, B.
Perhaps one of the most curious Grounds of Appeal is Ground 40, which states:
… erred by demonstrating he viewed the matter through a lens of views he held in earlier proceedings (2014-2016), thus going to a failure to bring an impartial mind to the issues before him.
Among other things, having checked the Court files and Orders made during the period mentioned, I delivered no judgments and therefore made no findings, one way or the other, against either the Mother or Mr Solberg, B’s Father. Most Orders made in that period were procedural and/or made by consent. The specific “lens” identified by the Mother has no particulars or details of any sort. And further, given the current appeal relates to Orders in relation only to D, that child was not even born until 2017. Accordingly, I have the greatest difficulty in seeing the utility of this particular Ground of Appeal, including how so long ago the period raised by the Mother now is. Further still, the contention here is a poorly articulated form of [apprehended] bias. Delay in raising such claims almost invariably defeats them on the basis that the apparently aggrieved party has waived her or his rights to make such a claim.[2] Raising alleged but unparticularised claims of bias from 7 years ago has no merit at all, together with the other evidentiary and related matters identified. Indeed, quite a number of the Mother’s unparticularised claims for bias (of any sort) have not been raised previously in the multiple earlier Court events. Accordingly, in the light of the High Court authority mentioned, they too suffer from the affliction or defect of “waiver” because they were never raised at any earlier Court event and only in the current Grounds of Appeal.
[2] On “waiver” and the requirement that any application for recusal on the basis of bias of any kind be made promptly, see Vakauta v Kelly (1989) 167 CLR 568 at 572 (Brennan, Deane & Gaudron JJ) & 579 (Dawson J); Smits v Roach (2006) 227 CLR 423 at 439-442 (Gleeson CJ, Heydon & Bell JJ) & 465-466; Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 at 449 (Gummow ACJ, Hayne, Crennan and Bell JJ).
Having regard to the principles outlined below, for the reasons that follow, none of the Grounds of Appeal (at least in their current form before the Court and otherwise), in my view, are sustainable. Indeed, a significant number of them are directly contradicted by the Mother’s conduct and earlier submissions. Indeed, so impoverished and lacking in detail are the Grounds of Appeal, in my view, they come very close to an abuse of process. This is especially so in circumstances where the Mother had run a number of appeals, including in relation to the Final Orders of Judge Hughes of June 2020, thereby giving her significant experience in knowing what is required of any Appellant, self-represented or otherwise. The Application, filed 23rd June 2023, must be dismissed, with an Order for costs in the Respondent Father’s favour, fixed in the sum of $2093.62. In all of the circumstances, however, I propose staying this costs Order, pending the determination of the substantive appeal. If the appeal is dismissed, this costs Order shall be payable 90 days after the dismissal of the appeal.
The Mother’s Evidence
The Mother’s evidence was set out in an Affidavit, filed 23rd June 2023. Given the length and breadth of the Grounds of Appeal, it is remarkably brief. Summarised, pars.1 – 10, and pars.5 – 10 in particular, deal with a limited but regularly mentioned contention that the Mother was denied procedural fairness in relation to two small tranches of material that appeared, somewhat out of the blue, from the Department of Communities and Justice (“DCJ”) in November and December 2022.
Paragraphs 11 – 30 deal respectively with what might reasonably be called “best interests” considerations regarding the Mother’s housing situation, some litigation between the Mother and the Father’s partner in the City AB Magistrates Court (pars.11 – 19 in particular). Pars.20 – 22 narrate matters relating to D’s schooling, while pars.23 – 30, outline what the Mother says would be, in her view, the impact of the Court’s Orders upon B and D. Annexed to the Mother’s Affidavit are (a) details of her latest rental agreement (dated 19th June 2023), (b) a copy of D’s School Report for Semester 1 in Kindergarten, and (c) various delightful photos of D. How these matters related, even indirectly, to the Grounds of Appeal, was not explained or immediately apparent.
As an observation only at this stage, given the large number of Grounds of Appeal, it is surprising how sparse the Mother’s Affidavit was. Its brevity and lack of comprehensive attention to the wider detail (indeed any relevant details), among other things, meant that even more attention was required of her written submissions.
The Mother’s written submissions
The Mother’s written submissions, filed 29th June 2023, including her broad as well as somewhat exotic, or perhaps eclectic, List of Authorities, were as follows (emphasis in original):[3]
[3] For example, the authorities listed included, and ranged from High Court and Full Court cases on sexual abuse in criminal matters and risk of abuse (BBH v The Queen (2011) 245 CLR 499; Isles v Nelissen (2022) 367 FLR 338; (2022) 65 Fam LR 288), to human rights litigation involving Finland. When asked about such authorities, and quite a number of others, especially a number of recent Full Court decisions in which appeals have been dismissed and in others, partially allowed, the Mother was unable to shed much light on why she relied upon them.
1. It is submitted the mother’s appeal is meritorious and has a good chance of succeeding. The errors of law are clear, and it is submitted that materially, the appeal is highly likely to succeed.
2. The absence of a stay would lead to an injustice as the matter is bona fide and the core arguments are clear. The arguments are listed below.
3. As set out in Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, one of the principles his Honour must apply is limiting the frequency of change in a child’s living arrangements. In breach of s 60CC2(b) and other mandatory provisions listed in the Objects of the Family Law Act 1975. Bluntly put, uprooting a young child from her settled routines - which his Honour afforded 7 weeks for her to deepen these routines from the time of his orders to the effective date - is not only illogical, but plainly cruel and tortuous and ‘plainly wrong’. The key issues in the Appeal lead to lack of judicial reasoning, poor use of discretion and failure to give adequate weight to evidence and in fact denying evidence to support a fact such as family report and redaction of key information in a child safety report at the courts request that was procedurally unfair.
4. It is not in [D]’s best interest to force a change of residence in circumstances where the prospects of the appeal succeeding are strong and with merit, and the likeliness of a hearing is within a relatively short period of time, noting the first procedural hearing is listed for 19 July 2023, further strengthening the argument found in Aldridge & Keaton.
5. It is erroneous for his Honour to apply weight to [D] meeting the kindergarten teacher at [Town E] School, on a day in late 2022, and satisfying himself in making orders she attend, yet apply inadequate weight to her established school routine where she is well settled, and as supported by her Semester One report, is seen to be thriving.
6. There is risk that if the orders are not stayed and the mother is successful on appeal, [D]’s place at [AW School] may not be available. It is in her best interest to continue at a school where she is thriving, happy and settled. Mandatory provision in the Family Law Act 1975 have not been exercised in line with the required practice.
7. Further, if the orders are not stayed, it would lead to an injustice and it is very likely, if not certain, [D] will lose her relationship with her mother and sister in opposition to the legislative provisions. It is substantiated by DCJ in the assessment before the Court the mother poses no risk, and the ‘impact’ would be ‘detrimental’ to [D]. DCJ report states ‘…with [Mr Ranwick] and [Ms AN] expressing that they are wanting [D] to have minimal contact with her mother. This is not in the best interest of [D].’ His Honour’s Orders of 15 May 2023 indeed make [D]’s contact with her mother less than meaningful.
Strength of Appeal
8. There is no adequate reason to make erroneous orders, limiting [D]’s time with her mother (and sister by proxy); yet leaving her in her mother’s care for a further 7 weeks after making the orders. It is submitted this is illogical and supports the appeal. It was plainly wrong to make orders limiting [D]’s time with her mother in circumstances where there was relevant and probative evidence that this would not be in [D]’s best interest.
9. Absence of a Family Report, the report from DCJ is the only independent evidence the Court has failed to properly rely on and give weight.
10. It is submitted his Honour did not have adequate evidence to support the Orders and minimise [D]’s time with her mother. It is submitted his Honour did not adequately analyse the children’s best interest pursuant to s60CC, as it applies now and into the future.
11. The Court applied inadequate weight to the father providing false and misleading information, as substantiated by DCJ in their cover letter of November 2022, thus demonstrating apprehended bias.
12. The Court placed inadequate weight on [B]’s best interest and limiting her relationship with her only sibling, and the effect this will have on both girls, failing to apply mandatory provisions.
13. His Honour failed to admit the mother’s evidence of the audio recordings leading to an unfair hearing and a miscarriage of justice as the evidence was bona fide in that the psychological harm to [D], as identified by DCJ, was continuing. It must be asked how the father and [Ms AN] were so certain on 7 March [D] was “coming home for good this time” with the lack of insight in talking to [D] about this fact.
14. It is submitted his Honour preferred the mother to not have access to justice through legal representation given his denial of the mother seeking an adjournment to obtain representation.
15. His Honour’s remarks regarding ‘Hughes J Final Orders were predicated on the mother relocating to [City AB] in a particular time’ is ‘plainly wrong’.
16. His Honour failed to apply adequate weight to the full compliance by the mother of 14 March orders, thus demonstrating a willingness to facilitate the relationship between [D] and her father. However, there was evidence the father was not, which HH acknowledged verbally on 15 May 2023 where he stated words to the effect ‘I know the father was wanting no contact’. It is submitted this goes to the strength of the appeal in that his Honour ignored evidence which: a) identified risk to [D] in her father and his partner’s care; and b) clearly stated it is not in [D]’s best interest to have minimal contact with her mother.
17. It is submitted his Honour failed to properly apply weight to child’s best interest in that [D] had a further 7 weeks to grow and nurture her established home routines with her mother and sister, affording her attachment to deepen, in addition to deepening valued and supportive relationships with her teachers and peers and settling more into her school environment, thus making the material change much more difficult for [D] come 2 July. Additionally, [D] settled into the alternate weekend time with her father since March. Routine and structure are imperative to a child, particularly of [D]’s age, and to have this so materially changed cannot possibly be in her best interest and is of no benefit to [D] in making a major change to her care arrangements.
18. Indeed, the evidence of child experts at DCJ does not warrant such a radical change to [D]’s care arrangements, thus going to the strength of the appeal.
19. The report DCJ sent to the Court initially, was not the same report provided to the parties. DCJ advised the mother in June that the request to redact the report came from the Court. This was done in circumstances where counsel for the father acknowledged this would require a hearing and sought same. His Honour declined to re-list the matter. The following day, the ‘Alternate Assessment’ was provided by his Honour’s chambers. Under the heading ‘[Ms AN]’ (P16/25), section 15; risk factors present; this is redacted. It is submitted the content relating to [Ms AN] in the report initially provided by DCJ would have identified the issues relating to [Ms AN] that are now known to the mother.
20. If DCJ are right in the information they have provided to the mother and the Court did request for DCJ to redact the parts pertaining to [Ms AN], it is submitted his Honour has made an error to properly exercise jurisdiction, failed to afford the mother procedural fairness, limited the mother’s argument, which culminates in a miscarriage of justice, leading to Orders that are manifestly unreasonable and plainly unjust. Further, it has exposed [D] to risk, which was present in the material before the Court. See Simmons & Simmons at 33, 36, 45, 48, 50 and 52.
21. The prospects of the appeal succeeding are high, therefore it is in [D]’s best interest to grant the Orders sought by the mother in this Application and if not, to provide clear reasoning why a Stay is not applied.
Addendum
Authorities
•Simmons & Simmons [2023] FedCFamC1A 44 (5 April 2023)
•Johnson v Johnson [2000] HCA 48 7 September 2000
•Charisteas v Charisteas [2021] HCA 29 (6 October 2021)
•Karttunen v Finland Unreported, United Nations Human Rights Committee,
•CCPR.C/46/D/387/1989, 5 November 1992 at [7.2] discussed in Martin et al (eds), International Human Rights Law and Practice: Cases, Treaties and Materials (1997) at 527-531
•Livesey (1983) 151 CLR 288 at 293-29
•House v The King [1936] HCA 40; (1936) 55 CLR 499 (17 August 1936)
•Annesley & Pembleton [2022] FedCFamC1A 8 (7 February 2022) [76]
•Isles & Nelissen [2022] FedCFamC1A 97
•Markarian v The Queen (2005) 228 CLR 357 at [25]
•Willmore & Menendez [2022] FedCFamC1A 73 (20 May 2022)
•Halstron & Halstron [2022] FedCFamC1A 65
•BBH v The Queen (2012) 245 CLR 499
•CDJ & VAJ (1998) 197 CLR 172 at 87
Legal Principles:
•s60CC (2)(b) Family Law Act 1975 (Cth)
•s60CC Family Law Act 1975 (Cth)
•s65 DAA Family Law Act 1975 (Cth)
•s65DA Family Law Act 1975 (Cth)
•s138 Evidence Act 1995 (Cth)
•s140 Evidence Act 1995 (Cth)
The Father’s written submissions
The Father’s written submissions, filed 30th June 2023, were as follows (emphasis in original; footnotes omitted):
1. [AC] Law Firm act for the Second Respondent Father, [Mr Ranwick] (“the father”).
2. The Applicant Mother is [Ms Markwell] (“the mother”). She is self-represented.
3. On 13 June 2023, the mother also filed a Notice of Appeal with respect to the judgement of His Honour Judge W. Neville of 15 May 2023, being Appeal No. NAA158/2023. On 23 June 2023, the mother filed an Application in a Proceeding with supporting affidavit seeking, inter alia, a stay of the orders dated 15 May 2023
Summary Dismissal
4. On 25 March 2022, Orders we made by consent in Chambers by His Honour Judge W. Neville, arising out of a consent position agreed between the parties on 18 March 2022. Order 2 of the Orders dated 25 March 2022 provides “that pursuant to s 114 of the Family Law Act 1975 (Cth), the First Respondent is hereby restrained from filing any application other than a contravention application without first obtaining leave of the Court”.
5. At the time those orders were made, the mother was the first respondent, and was the subject of an application to declare her a vexatious litigant.
6. The mother has not sought leave to file the Application in a Proceeding dated 23 June 2023.
7. The father has not been given an opportunity to oppose leave being granted.
8. The mother has expressly contravened Order 2 of the Orders dated 25 March 2022.
9. The Application in a Proceeding should be summarily dismissed, along with costs to the father, pursuant to s 117(2) of the Family Law Act 1975 (Cth).
Stay of Orders
10. There mere filing of an appeal is not sufficient grounds for a stay of proceedings to be granted; the granting of a stay is wholly discretionary and should only occur when appropriate circumstances can be established to warrant the granting of the stay.
11. In Alridge & Keaton (Stay Appeal) [2009] FamCAFC 106, the Full Court elegantly articulated the relevant principles in the determination of a stay. Principles relevant to this matter are:
a. That the onus to establish a proper basis for the stay rests with the applicant;
b. That a person who has obtained a judgement is entitled to the benefit of that judgement, and to presume that judgement is correct;
c. The bona fides of the applicant;
d. The risk that an appeal may be rendered nugatory if a stay is not granted;
e. A preliminary assessment of the strength of the proposed appeal (that is to say, whether the appellant has an arguable case);
f. The desirability of limiting the frequency of any change in the child’s living arrangements; and
g. The best interests of the child the subject of the proceedings.
12. The father contends the mother has failed to establish any proper basis for the stay, and that he is entitled to the benefit of His Honour Judge W. Neville’s judgement.
13. The father puts in issue the bona fides of the mother. This matter has a long and protracted history in which the father contends the mother has, time and again, revealed herself to be dishonest, capricious, and prone to continuing conflict. The father contends this application (and, indeed, the appeal) represents another example of the mother’s continual attempts to prolong this litigation.
14. There is no risk in this case that if the stay is not granted, the appeal will be rendered nugatory.
15. The father contends that a preliminary assessment of the strength of the mother’s case on appeal reveals it to be misconceived, baseless, and doomed to fail.
16. Whilst the desirability of limiting the frequency of any change in the child’s living arrangements is a pertinent consideration in this case, so too is the child’s best interests, which the father contends is living with him from 2 July 2023 pursuant to the 15 May 2023 Orders, particularly in light of the numerous adverse findings against the mother contained in His Honour’s judgement.
Restraint against [Ms AN]
17. The mother has propounded no evidentiary basis why a restraint ought to be granted against the father bringing the children into contact with [Ms AN], his fiancé.
18. The mother does not particularise what head of power she relies on in seeking the injunction, although noting there is no extant Part VII application before the Court, it is presumably pursuant to 68B(2) of the Family Law Act 1975 (Cth).
19. Section 68B(2) says the Court may grant an injunction in the terms set out therein where it is “just or convenient to do so”. The father contends that it is neither.
20. The father is engaged to [Ms AN]. They live together. They have a child together. [Ms AN] has not, at any stage during these proceedings, been the subject of adverse findings of this court.
21. Notwithstanding the mother’s assertions to the contrary, [Ms AN] has also never been identified as a risk of harm to the child.
Conclusion
22. If not dismissed summarily, the Application in a Case filed 23 June 2023 on behalf of the mother ought to be otherwise dismissed, along with costs to the father, pursuant to s 117(2) of the Family Law Act 1975 (Cth).
Outline of Principle
I note the following from the Full Court’s decision in Aldridge & Keaton (Stay Appeal).[4] At [17] – [18], the Court said (emphasis added):
[4] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. For a more recent discussion, but no formal ruling, by a differently constituted Full Court (Thackray, Ainslie-Wallace & Murphy JJ) of stay applications, where Aldridge & Keaton (Stay Appeal) was distinguished but the comments of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Limited [1986] HCA 84; (1986) 161 CLR 681 were further considered, see Anderson v Senior (Stay Appeal) [2013] FamCAFC 152; (2013) 279 FLR 399; (2014) 50 Fam LR 21 at [35], [37] and [38]. See also the comments of the Full Court (Warnick, Boland & May JJ) in K & B [2006] FamCA 848; (2006) FLC 93-288.
[17] This is an appeal from a discretionary judgment. There are well established principles on the limits on interference by an appellate court with such a judgment (see House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716).
[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):[5]
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
[5] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.
In the same case, Aickin J (with whom Mason and Wilson JJ agreed at p.526) said (at pp.537-538) (emphasis added):
Statements of the general principles to be applied by an appellate court when asked to set aside an order made in the exercise of a judicial discretion generally include a reference to the trial judge giving inadequate weight to some factors and excessive weight to others. It is however a mistake to suppose that a conclusion that the trial judge has given inadequate or excessive weight to some factors is in itself a sufficient basis for an appellate court to substitute its own discretion for that of the trial judge. As Kitto J. said in Lovell v. Lovell (1950) 81 CLR, at p 533:
“The proposition that the appeal court will consider whether 'no sufficient weight' has been given to relevant considerations is not inconsistent with the principle that the appeal court does not deal with the appeal as if it were exercising the original jurisdiction; even if it considers that insufficient weight has been given to some relevant consideration, it will still not substitute its judgment for that of the primary judge unless it comes clearly to the conclusion for that reason that the discretion has been exercised wrongfully.”
15. It is clear that that test will not be satisfied merely by reason that the appellate court, considering the matter de novo, would itself have arrived at a different result. The fact that a decision on custody depends upon the exercise of a judicial discretion recognizes that in many cases different minds may arrive at different conclusions.
16. The advantage which a trial judge has of seeing and hearing the witnesses is of particular importance in matters of custody where so much depends on an evaluation of the characters and personalities of the parents, and their attitudes, not only to the child, but also to each other. The attribution of comparative weight or importance to various factors will generally be influenced by the impression formed on seeing and hearing each parent, and in appropriate cases the child or children involved. Some objective matters such, for example, as relative financial resources and adequacy of accommodation may stand in a different position but in the present case it is not suggested that any error occurred in that respect.
I also remind myself of the observations by Kirby J in CDJ v VAJ, where his Honour said, at [185, par.2] (internal citations omitted; emphasis added):[6]
Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
[6] CDJ v VAJ (1998) 197 CLR 172.
To similar effect and emphases are the comments in Sigley v Evor where the Full Court said (at [128] – [129]; emphasis added):[7]
Discretionary judgment
[128] This is an appeal against a discretionary judgment and the principles to be applied are well established: House v The King (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; Norbis v Norbis (1986) 161 CLR 513 and CDJ v VAJ (1998) 197 CLR 172.
[129] We are mindful of the position of the Federal Magistrate in relation to complaints about assessment of weight where no error of law or fact is obvious: see Gronow v Gronow at 519-20 per Stephen J. We are also mindful of the necessity to avoid “an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved”: see AMS v AIF (1999) 199 CLR 160 per Kirby J at 211; A v J (1995) 19 Fam LR 260 at 269 per Full Court (Fogarty, Lindenmayer and O’Ryan JJ) and Rollings v Rollings (2009) 230 FLR 396 per Full Court (Boland, O’Ryan and Murphy JJ).
[7] Sigley v Evor (2011) 44 Fam LR 439.
In relation to principles regarding apprehended bias, in Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd, Kirby and Crennan JJ said, at [112] (internal citations omitted; emphasis added):[8]
Sometimes judicial interventions and observations can exceed what is a proper and reasonable expression of tentative views. Whether that has happened is a matter of judgment taking into account all of the circumstances of the case. However, one thing that is clear is that the expression of tentative views during the course of argument as to matters on which the parties are permitted to make full submissions does not manifest partiality or bias.
[8] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577. His Honour, Gummow A-CJ, concurred, at [4].
A more recent consideration of apprehended bias by the High Court is the decision in Michael Wilson & Partners Limited v Nicholls.[9] It is helpful to note the following from that case, both regarding its summary of principle, and for comparative purposes, its complex factual and procedural circumstances.
[9] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.
First, as to relevant principle, the High Court said, at [31] – [33] (internal references omitted), the relevant test in relation to apprehended bias is:
[31] … whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
[32] As the plurality in Johnson v Johnson explained, “[t]he hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues.”
[33] Because the test is objective it is important to keep an inquiry about apprehension of bias distinct from any inquiry about actual bias. An inquiry about actual bias in the form of prejudgment would require assessment of the state of mind of the judge in question. No doubt that would have to be done, at least for the most part, on the basis of what the judge had said and done. But to allow an inquiry about whether the judge had in fact prejudged some issue to enter into a debate about what a fair-minded lay observer might apprehend is to introduce considerations that are irrelevant to the issue that is to be decided when a party submits that there is or was a reasonable apprehension of bias.
The High Court also commented in Michael Wilson, first at [63] in relation to the test in Ebner, then at [67], saying (internal citations omitted; emphasis in original):
[63] In Ebner v Official Trustee in Bankruptcy, the plurality pointed out that application of the apprehension of bias principle requires two steps. First, it requires the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. And second, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The plurality in Ebner went on to say that “[t]he bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated.” So too, in this case, the bare assertion that the judge appeared to be biased through prejudgment would be of no assistance without articulation of the connection between the events giving rise to the apprehension of bias through prejudgment and the possibility of departure from impartial decision making.
…
[67] … an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. An allegation of apprehended bias does not direct attention to, or permit consideration of, whether the judge had in fact prejudged an issue. To ask whether the reasons for judgment delivered after trial of the action somehow confirm, enhance or diminish the existence of a reasonable apprehension of bias runs at least a serious risk of inverting the proper order of inquiry (by first assuming the existence of a reasonable apprehension). Inquiring whether there has been “the crystallisation of that apprehension in a demonstration of actual prejudgment” impermissibly confuses the different inquiries that the two different allegations (actual bias and apprehended bias) require to be made. And, no less fundamentally, an inquiry of either kind moves perilously close to the fallacious argument that because one side lost the litigation the judge was biased, or the equally fallacious argument that making some appealable error, whether by not dealing with all of the losing side's arguments or otherwise, demonstrates prejudgment.
The High Court further observed, at [69] – [70] (internal citations omitted):[10]
[69] Here, however, it was said that “the fact that one party appeared before the judge on seven separate days in closed court raised a different and additional concern.” That concern was identified as the possibility “in such circumstances that the judge's mind will become familiar with the character of the plaintiff's case to an extent that, consciously or subconsciously, there will be a tendency to place the further evidence within the pre-existing mental structure” (emphasis added). But the existence of a “concern” described as the possibility of placing the evidence led at trial into a “pre-existing mental structure” does not demonstrate that the fair-minded lay observer might reasonably apprehend that the judge might have prejudged an issue to be decided at trial. In order to establish such a reasonable apprehension it is necessary to analyse more closely the connection that is asserted between the conduct and disposition of interlocutory applications and the possibility of prejudgment.
[70] The fact that Einstein J made several ex parte interlocutory orders and on each occasion directed that those applications, the material in support, the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. It may well be that the directions not to disclose material should not have been left in force for as long as they were. Perhaps they should not have been made at all. But if their making or the failure to limit their duration was wrong, that did not found a reasonable apprehension of bias.
[10] See also Heydon J’s comments, at [117], to the effect that, even on the facts in Michael Wilson, “prolonged familiarity” was insufficient to establish any relevant apprehended bias.
Because the Father sought an Order for costs, although there were few if any submissions on this subject, presumably on the basis that the reason(s) for such an Order are perhaps self‑evident, I note the following principle regarding same.
The statutory and jurisprudential considerations in relation to the making (or not making) orders for costs are well known. Although well known, it is sufficient to note the following from the Full Court decision in Stephens v Stephens.[11] Beginning at [62], the Full Court said (emphasis added):
[11] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41]:
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
Consideration & disposition
For ease of reference, and attempting to give a greater degree of coherence and order to the Mother’s Grounds of Appeal, I noted at the outset of the hearing the following broad categories of issues into which the Grounds could (hopefully) be best grouped, acknowledging that there is some overlap between them and/or the Grounds
(a)“weight” (pars. 4, 5, 6, 7, 13, 15, 21, 30);
(b)bias (pars. 2, 3, 12, 14, 17, 18, 20, 24, 25, 26, 34, 35 & 40)
(c)procedural fairness (pars. 6, 9, 10, 14, 16, 20, 22, 35)
(d)miscellaneous (pars. 1 – 3, 5, 11, 28 & 40)
I will not address every single ground of appeal but take a more “representative” approach in each category unless otherwise called for. A principal and obvious reason for taking this approach is for the basic reasons, already observed, is that it is largely an exercise in “guess‑work” as to what error, in each Ground, the Mother is actually alleging for the simple reason that there is no detail or particulars at all. There is no reference to any paragraph in the judgment under appeal. On these basic procedural gaps and omissions regarding both evidence and principle, the current Application is fundamentally flawed. For the same reasons, in my view, the Grounds of Appeal are likewise fundamentally flawed. It is not the function or responsibility of the Court (or the Respondent) to go on a reconnaissance mission to try to work out what is actually being alleged. It is for the Applicant/Appellant, especially one who is long-experienced and well-rehearsed in litigation and Court practice, to make her claims with precision and proper detail. Neither precision, nor detail, are evident in either the current Application before this Court, or in the Grounds of Appeal before the Full Court.
In relation to each and all of the Grounds asserted by the Mother that go to allegations of questions of “weight”, as noted above from the Full Court decision in Sigley v Evor, such matters relate to the exercise of the Court’s discretion. In other areas of jurisprudence, such as in migration appeals and questions of discretion, there are a significant number of statements by the High Court that express the same basic principle regarding interfering with a trial Court’s exercise of discretion by noting that such challenges are simply another way of indicating a litigant’s disagreement with the Court’s decision. Because such comments are so well known, and in the light of the Full Court’s outline of principle in Sigley v Evor, I do not need to refer to further or other authorities.
Accordingly, in my view, the contentions of the Mother regarding issues of the relevant “weight” accorded by the Court to certain evidence are problematic, no detail is provided, and therefore, in my view, highly unlikely to succeed.
Regarding contentions raised by the Mother regarding bias (of both recognised forms, actual and apprehended), there are multiple impediments to the success of these grounds. First, as already indicated, the Mother gives no particulars or references at all. Secondly, nor does she refer to any relevant principle, which is supplied above. Thirdly, for example, her factual analysis is consistently awry, such as in pars.12 and 17. Those paragraphs refer to allegations (and ongoing contest) between the Mother and the Father’s partner, Ms AN. Paragraphs 206ff of the judgment under appeal address the Court’s assessment of material produced by DCJ regarding alleged “risk”. The Mother’s unparticularised complaints here are little more than another area where she disagrees with the Court’s decision, including the significantly adverse assessment of her evidence. Moreover, in almost all instances (as noted earlier in these reasons) the contention of the Mother regarding any bias, of any sort, was never raised at the relevant time, and thereby, also faces the further obstacle of her having “waived” her contention now to claim some sort of unspecified and undetailed bias.
The complaint at Ground 24 regarding references to various and multiple judgments of her Honour Judge Hughes, and by the Full Court, only suffer from the reality that these are simple statements of fact: there were, and remain, multiple judgments by those mentioned. They disclose nothing further that could found any claim of bias of any sort.
Regarding matters of “procedural fairness”, the Mother’s principal focus here, noted in multiple grounds and notably in her Affidavit and submissions (e.g. Ground 20; Affidavit pars.6-10), focus upon what the Court did, and apparently did not, do in relation to unsolicited material that was provided by DCJ in November and December 2022. The Mother’s complaint is either or both that (a) the Court did not take sufficient notice or give sufficient “weight” to it (albeit that she is very selective in her account of what is in those documents), and/or (b) she was denied procedural fairness in dealing with that material.
In addition to the already referenced paragraphs in the judgment regarding the material from DCJ and the Mother’s highly selective evidence in relation to it (par.206ff), the singular problems with the Mother’s complaint may be summarised as follows:
(a)After the DCJ material arrived, unannounced, at the Court in November 2022, there was the continuation of the earlier, 5th October hearing (adjourned because of the Mother’s ill-health on the day), on 24th November 2022 at which both parties were present via video-link;
(b)Orders were made on that occasion that provided a timetable for the provision of written submissions in relation to the material provided by the DCJ. There was no appeal in relation to those Orders;
(c)After the second tranche of material from DCJ arrived in December 2022, a directions hearing was held on 20th December 2022, again with both parties attending via video‑link;
(d)Orders were made on that occasion also, which provided for further written submissions in relation to this later material from DCJ. There was no appeal from those Orders;
(e)Both parties provided written submissions in accordance with the November and December Orders. Those submissions were set out in full in the judgment under appeal.
In my view, it is difficult to see how the Mother can complain that she was denied procedural fairness in relation to the material from DCJ. She was given two opportunities to comment. She did so at length. At neither of the hearings/listings in November and December, or in her written submissions, did she make any complaint about not having a relevant opportunity to comment on the DCJ material. To make such generalised claims now, so many months later, is inapt and improper.
Should it need to be noted, the last directions hearing was at the end of the Law Year with the Court then going into recess until the end of January.
Finally, showing her lamentable propensity to “fudge” claims and evidence, in her Affidavit in support of the Stay Application, at par.10, the Mother deposed as follows: “had the unredacted report been before the Court, it could have indicated issues with Ms AN ….”, the Father’s partner. The reality was that the “unredacted report” from DCJ was “before the Court”; both sets of material from DCJ were admitted as Exhibits DCJ-1 and DCJ-2 at the hearing on 24th March 2023. At the hearing, the Mother was in fact accorded further “procedural fairness” by the Court noting that the DCJ material would be admitted into evidence but if she had any objection she should notify the Court within a prescribed time. She never did so. As well, the Transcript for 24th March 2023 (pp.40 and 42) confirm the Mother agreeing to the DCJ material being admitted (indeed insisting on the November material in particular), and being accorded the procedural courtesy and indulgence of being able to make any objection to the admission of this material, even though both parties had received it from the Court in November and December respectively.
For the reasons given, there is clear evidence that both parties had a number of opportunities, the Mother in particular and where her assent is recorded in the transcript of the day in March 2023, to comment on unsolicited material provided by DCJ. Likewise, there is clear evidence that both parties provided written submissions regarding this DCJ material. In none of the submissions, notably by the Mother, is there any claim of either procedural unfairness, or of any relevant bias. Accordingly, any and all claims in this regard by the Mother in her Grounds of Appeal are unsustainable.
Not for the first time, in material before the Court set out in the judgment under appeal, and in her selective and limited material in support of this Stay Application, the Mother has made unsupported comments (this time under oath); she should not make unsupported and selective claims, especially in sworn material before the Court. Her comments in this regard were inappropriate and misleading. Such matters go to the Court’s consideration of the bona fides of the appeal. It is not that the Mother is not earnest in her desire to have the May 2023 judgment overturned. She is always earnest in her Applications. Unfortunately, as I detailed in the principal judgment, and briefly so here, in my view, the Mother has a very unfortunate history of being less than scrupulous with the truth. Her desire to achieve her ends leads her regularly to take any path, a number of them ill-considered, to achieve her ends. For reasons given in the principal judgment, and in these reasons, I treat the Mother’s evidence with the greatest caution. In my view, it would be completely imprudent to do otherwise.
It only remains to observe that the Mother’s contentions regarding the Court’s alleged failure to observe the legislative pathway under Part VII of the Act are again inaccurate if not patently false. Her complaint is, in reality, another instance of a disgruntled litigant being dissatisfied with the Court’s ultimate decision. Par.246(i) – (vi) summarise the Court’s consideration of the legislative pathway in the light of the evidence before it.
Further, another of the Mother’s complaints, among others, is the potential impact of the Court’s Orders upon the sibling relationship between B and D. Nowhere does she address the potential impact upon D’s separation from her younger brother, BD in the Father’s household. Again, regular selectivity is the order of the day for the Mother.
By reference to the Full Court’s decision in Aldridge & Keaton (Stay Appeal) noted above, and in the light of the discussion in the reasons thus far, I need only note the following summarily.
Given that D has lived with her Father, his partner (Ms AN, together with young BD) for a significant period of time before the Mother’s unilateral action in January this year, among other things to enrol D in school without reference (or proper reference) to the Father, in my view, the “change in residence or living situation” consideration is much diminished. Put another way, she knows both households well and has siblings in each. In fact, if the stay were to be granted and the appeal dismissed, there would be at least two more changes to D’s residence. She is currently with the Father. She should remain there, subject to the currently ordered weekend time with the Mother (with the recovery Order still in place in the Registry if the Mother should retain D).
The same general matters are also relevant to whether the appeal would be rendered nugatory if the stay was not granted. Again in another way, not granting the stay is unlikely to have major impacts upon the child and her parents. Inconvenience to one or either household is inevitable, but in my view, especially having regard to the matters already noted, and D’s young age, those disruptions do not outweigh the other considerations set out in these reasons.
For the reasons given, and the “best interests” considerations outlined here and in the principal judgment, the Stay Application should be refused. Because of the conclusion I have reached and the path taken to reach it, it is unnecessary to consider the Father’s alternative arguments based upon summary dismissal, forceful as they are, and likely to succeed if nothing else was considered. Otherwise, and in addition to these reasons, I accept the Father’s submissions.
Again by way of summary: (a) the Mother is a very experienced self-represented litigant, at both first instance and in relation to multiple appeals she has conducted; (b) her Grounds of Appeal, and her current Application for a Stay, are devoid of any detail or particulars, either by reference to any paragraph in the judgment under appeal, or in her Affidavit in support of the current Application, or in her submission; (c) conversely, her Grounds of Appeal are replete with a litany of generalised complaints indicating her disapproval of, and disagreement with, the judgment under appeal; (d) the lack of detail of any kind and lack of particulars, is procedurally unfair to the Respondent Father, who does not, and cannot, know the case he is to meet on the Mother’s current iteration of her relentless pursuit of her goal to have D live with her, at whatever cost to everyone else; and (e) the Mother’s lack of detail in the Grounds of Appeal, and in her other material, is no less procedurally unfair to the Court, because her current Application, like her appeal, is an exercise in divining about what precisely she complains (either as to evidence or anything else) that can be addressed by either the Full Court or this Court.
The Mother’s highly generalised complaints, without detail, do not assist her, the Father, or the Court one iota. Everyone is effectively wandering in the litigious desert without any compass or guide. Given her highly experienced history of litigation since 2014, one wonders how many more opportunities the Mother has, or will seek, to use the Court system effectively to harass and harangue the Respondent Father until, out of [physical, emotional, psychological or financial] exhaustion, and/or anything else, she achieves her end to have D live primarily with her. A summary of that history, including the Mother living in country Victoria until quite recently, thereby making more regular and more logistically plausible “parenting time” with her daughters more realistic, is set out in the judgment under appeal, as well as in the multiple judgments of Judge Hughes and the Full Court.
In short, given her significant litigious experience, in my view, the Mother must have known and been aware how deficient her Grounds of Appeal are, and how completely lacking in detail they remain from her other material filed. She must also be taken to know that so many if not most of her Grounds of Appeal are nothing more than the most generalised complaints about the judgment under appeal. Disappointment and generalised complaint are, in fact, found in every Ground of Appeal. Without even the most basic points of reference, particulars or details, they can never rise above generalised and unspecified complaints, a very significant number of which never having been raised at any time over the past years of the litigation.
The Mother’s extremely poor documentation, across the board, ultimately is a waste of the Father’s time, and the resources of the Court. As such, her Application and the material filed by the Mother, in my view, amounts to an abuse of process. Ultimately, the Mother’s Application was an exercise in unnecessary and wasteful guesswork. It must be dismissed.
Having regard to the principles in the Full Court decision in Stephens, set out above, notably that there does not need to be specific factual findings to support such an Order, or that more than one reason for making a costs Order under s.117(2) of the Family Law Act 1975 (Cth) is necessary, and also having regard to the range of matters set out in these reasons, the Father should have an Order for costs as he sought, fixed in the sum of $2,093.62. They are to be paid within 90 days, which period will almost certainly allow time for the Full Court to consider the appeal and make any consequential Orders as appropriate. I will, however, formally, stay the costs Order until after the appeal is finalised. If it is dismissed, the 90 days shall run from the date of the dismissal.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 13 July 2023
Appendix A
GROUNDS OF APPEAL
1.The learned trial judge erred by failing to afford the Respondent Mother procedural fairness.
2.The learned trial judge erred by demonstrating apprehended bias in favour of the Second Respondent Father.
3.The learned trial judge erred by viewing the matter prejudicially leading to erroneous orders.
4.The learned trial judge erred by failing to give adequate weight to probative and relevant evidence, not ensuring discretion is balanced to achieve a 'just' outcome and as such, failed to apply mandatory provisions of the Family law Act 1975 (Cth) objectives to ensure the principles of a meaningful relationship are applied.
5.The learned trial judge erred by failing to properly apply the law and, in particular, but not limited to, a failure to ensure the importance of the maternal and sibling biological relationships are maintained as guided by the best interest principles of the Family LawAct 1975 (Cth) and s60B(4) to ensure the United Nations Rights of the Child, article 3, 9 and 12 are applied correctly.
6.The learned trial judge erred by failing to ensure the Fair Hearing Rule and as such, has shown apprehended bias in the decision making that has led to an injustice by not applying the mandatory principles in accordance with s60CC provisions in the Family Law Act 1975 (Cth) of the best interests of the child.
7.The learned trial judge erred by not giving adequate reasoning as it relates to the Orders, in particular, but not limited to, Order 10.
8.The learned trial judge erred by uttering statements about the Appellant Mother which go beyond the realm of tentative statements, to statements which the fair‑minded lay observer would conclude embodies a failure to be impartial.
9.The learned trial judge erred by not affording the Appellant Mother's right to procedural fairness and natural justice, in circumstances where the reasonable lay observer would conclude the trial judge could not bring an impartial and unprejudiced mind to the matter before him.
10.The learned trial judge erred by exercising actual and/or apprehended bias.
11.The learned trial judge erred by impermissibly intervening when the Appellant Mother was speaking, including, but not limited to, during cross-examination of the Second Respondent Father.
12.The learned trial judge erred by failing to properly consider risk of harm to the child, [D], in circumstances where the evidence was that the Second Respondent Father and his partner, [Ms AN], are Persons of Interest for psychological harm to [D], thus, the trial judge ignoring prima facie evidence in an act of apprehended and/or actual bias in favour of the Second Respondent Father and failure to consider or properly consider child's best interest and child's safety and welfare.
13.The learned trial judge erred by failing to apply or properly apply weight to the evidence before him.
14.The learned trial judge erred by making orders which breach the fair hearing rule, inconsistent with the Litigants in Person guidelines and, as such, can be perceived as apprehended bias, demonstrating partiality in favour of the Father, illogicality and a mindset that seeks to determine facts other than on their legal and factual merits.
15.The learned trial judge erred by not giving adequate weight to, or properly considering the facts which is mandatory in determining best interests of a child, which can lead the public to lose faith in the judiciary.
16.The learned trial judge erred by making a jurisdictional error by failing to comply with mandatory provisions in the Family Law Act 1975 (Cth), including s60CG(1)(a); s60CG(1)(b); the 'best interest' tests in accordance with the provisions set out in s60CC; s60 (b) ( 4 ), by limiting State protections and making findings which are erroneous and unreasonable.
17.The learned trial judge erred by failing to view the material provided by Department of Communities of Justice ("DCJ") through a lens that excluded the Second Respondent Father and his partner as a risk to [D], which can be perceived as an act as apprehended bias.
18.The learned trial judge erred by failing to admit the audio recordings tendered into evidence as sought by the Appellant Mother, in circumstances where one of those recordings was not objected to by Counsel for the Second Respondent Father, in an act that demonstrates apprehended bias against the Appellant Mother and which may be perceived by a fair-minded lay observer as a fixed mindset.
19.The learned trial judge erred by failing to consider the sibling relationship between [D] and her sister, [B].
20.The learned trial judge erred by making orders on 24 November 2022 to release the material provided by DCJ to the parties, then, following an email from Counsel for the father to chambers stating ''As part of His Honour's orders, I understand he intends to make available the material produced by DCJ to the parties. I am now instructed, with great urgency, that the material contained within the DC] file likely contains highly sensitive information about a third party. I need to bring this to His Honour's urgent attention. I respectfully seek the matter be urgently re-listed in relation to this discreet issue only"; the learned trial judge provided a redacted copy of the DCJ report on 25 November without providing the Appellant Mother the right to be heard on the matter, in an act of what can be perceived by the fair-minded lay observer as apprehended bias. Further, the learned trial judge erred by failing in his duty to consider the risk of harm to [D] with the information that was likely contained in the redacted report.
21.The learned trial judge erred by failing to consider the Second Respondent Father's capacity to involve the Appellant Mother in the child's life, in line with the risks identified by DCJ, and probative and relevant evidence of the Second Respondent Father's inability to foster a relationship between the child, [D], and her Mother, and sister, [B], which were available to His Honour.
22.The learned trial judge erred by failing, in accordance with s11F Family Law Act 1975 (Cth), to order a Family Report.
23.The learned trial judge erred by failing to appoint an Independent Children's Lawyer ("ICL") in circumstances where His Honour had ventilated the appointment of an ICL during proceedings.
24.The learned trial judge erred by failing to bring an impartial mind to proceedings, often referring to the Appellant Mother's "numerous failed appeals" and “Judge Hughes' findings", thus demonstrating to the fair-minded lay observer an unwillingness to bring an impartial mind to the matter before him.
25.The learned trial judge erred by demonstrating apprehended bias by expediting the Second Respondent Father's Application - Contravention of 7 March 2023, and listing the matter for a hearing on short notice in circumstances where it was unlikely the Appellant Mother would have been able to procure legal representation, thus going to not affording procedural fairness to the Appellant Mother.
26.The learned trial judge erred by allowing a Contravention - Application of 7 March 2023 to be filed by the Second Respondent Father and heard on short notice in circumstances where the allegations contained in the application were not afforded for in the Orders, therefore not summarily dismissing it.
27.The learned trial judge erred by inferring that the Appellant Mother was to relocate to [City AB] in a fixed time following the making of Judge Hughes' Final Orders, in circumstances where that was not reflected in the Orders of 30 June 2020, and where Judge Hughes made reference to the difficulty in the Appellant Mother finding accommodation in [City AB].
28.The learned trial judge erred by making finding of fact the Appellant Mother slept in her car with [D], in circumstances where the Appellant Mother adduced evidence proving she was staying in an Airbnb the night the Second Respondent Father made that allegation.
29.The learned trial judge erred by discriminating against the Appellant Mother for the type of accommodation she and the children reside in, having evidence this was the only way she could relocate to [City AB], and in direct contrast to the fact the Mother was living in crisis accommodation at the making of the Final Orders in June 2020.
30.The learned trial judge erred by applying insignificant weight at the attempts the Appellant Mother had made since 3 days after the making of those Final Orders on 30 June 2020 to obtain accommodation in [City AB].
31.The learned trial judge erred by making a finding that if the Appellant Mother was such a risk to [D], warranting such erroneous Orders, then why not remove parental responsibility in relation to [B].
32.The learned trial judge erred by failing to consider or properly consider the practical difficulties in [D] living primarily with her father, in circumstances where he works overnight shifts.
33.The learned trial judge erred by erroneously finding it was in [D]’s best interest to attend [AE School], where she had met the teacher once in late 2022, as opposed to remaining at a school she has been enrolled at since the start of her education and has an established routine, established relationships with her teachers and peers, thus, going against child’s best interest considerations.
34.The learned trial judge erred by demonstrating bias in favour of both Fathers, in circumstances where he showed little to no criticism of them for unilaterally enrolling the children in a school of their choosing, yet found the mother guilty without reasonable excuse, despite in the time she found ongoing accommodation in [City AB], it was school holidays, which resulted in school closures and a school needed to be chosen for [D], and it was reasonable this would be near the school [Mr Solberg] enrolled [B] in, as it goes to practicality.
35.The learned trial judge erred by not affording the mother an adjournment to properly prepare her material, then is critical for her material lacking key evidence which would have supported the mother's position, thus going to a failure to afford the Appellant Mother procedural fairness.
36.The learned trial judge erred by not considering or properly considering the Appellant Mother's impecunious position, contrary to the evidence that was before His Honour, in particular the cost of relocating to [City AB], and making an excessive costs order which is beyond her means, in particular, where her Application - Contravention had merit.
37.The learned trial judge erred by finding the Second Respondent Father, [Mr Ranwick], had reasonable excuse for withholding [D] from the Appellant Mother on 9 July 2022 in circumstances where the evidence tendered by the Appellant Mother, in accordance with Orders of 24 November 2022, and the material from DCJ provided to the Court explicitly state the Father was told there is no reason that [D] couldn't be handed over, thus demonstrating the father did not have reasonable excuse to contravene the Orders.
38.The learned trial judge erred by not finding the Appellant Mother met the threshold in accordance with Rice v Asplund.
39.The learned trial judge erred by finding the Second Respondent Father met the rule of Rice v Asplund in circumstances where there couldn't possibly have been a change in circumstances given the Final Orders considered the Mother residing in [City AB].
40.The learned trial judge erred by demonstrating he viewed the matter through a lens of views he held in earlier proceedings (2014-2016), thus going to a failure to bring an impartial mind to the issues before him.
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38
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