Pinson & Pinson (No. 2)
[2022] FedCFamC1A 18
•15 February 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pinson & Pinson (No. 2) [2022] FedCFamC1A 18
Appeal from: Pinson & Pinson (No 4) [2021] FCCA 1844 Appeal number(s): NOA 44 of 2021 File number(s): BRC 3734 of 2019 Judgment of: TREE J Date of judgment: 15 February 2022 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Dispensation of transcript – Where the mother seeks reinstatement of her abandoned appeal and dispensation of transcript – Failure to file transcript – Where no proposed ground of appeal enjoys merit – Where reinstatement of the appeal is not necessary to enable the Court to do justice between the parties – Application dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) s 60CC(2A)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.44
Cases cited: Bemert & Swallow (2010) FLC 93-441; [2010] FamCAFC 100
House v The King (1936) 55 CLR 499; [1936] HCA 40
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Number of paragraphs: 29 Date of hearing: 10 February 2022 Place: Cairns The Applicant: Self-represented litigant The Respondent: Self-represented litigant Counsel for the Independent Children's Lawyer: Mr Hodges Solicitor for the Independent Children's Lawyer: Barbara Fox Solicitor ORDERS
NOA 44 of 2021
BRC 3734 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PINSON
Applicant
AND: MR PINSON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
TREE J
DATE OF ORDER:
15 FEBRUARY 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 24 December 2021 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 the pseudonym Pinson & Pinson (No. 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
INTRODUCTION
On 9 December 2021, I dismissed an Application in an Appeal brought by Ms Pinson (“the mother”) seeking that the Court provide transcript of the proceedings from which her appeal from final parenting orders made on 12 August 2021 was brought (Pinson & Pinson [2021] FedCFamC1A 85, (“first reasons”)). Albeit in fact the time for filing the transcript had already passed by that time, nonetheless the mother still did not thereafter file transcript and thus the appeal was deemed abandoned.
By her Application in an Appeal filed 24 December 2021, the mother now seeks for her appeal to be reinstated, and for the Court to dispense with her obligation to provide transcript. That said, in her affidavit filed in support of her application, the mother also sought that the Court provide to her a digital copy of the Auscript recording, to allow her to “find the relevant sections of the transcript”.
Mr Pinson (“the father”) and the Independent Children’s Lawyer (“ICL”) both oppose the application for reinstatement and any dispensation with transcript.
For the reasons which follow, the application for reinstatement will be dismissed. It is thus unnecessary to consider any application for dispensation.
APPLICATION FOR REINSTATEMENT
Rule 13.44 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides that “[a] party may apply to have an appeal taken to be abandoned under this Chapter reinstated”. That rule does not provide any specified criteria to be taken into account in the exercise of discretion by the court, as noted by the Full Court in Bemert & Swallow (2010) FLC 93-441 (“Bemert & Swallow”) in relation to its predecessor rule, where their Honours concluded at [154]:
…[i]n our view, the discretion to reinstate an abandoned appeal is at large and no attempt should be made to limit the exercise of the discretion nor identify in any prescribed way the matters that should be taken into account. However, it is important to appreciate the relevant provisions of Chapter 1 of the Rules in relation to case management and what was said by the High Court in Aon Risk Services.
Despite that statement however, Bemert & Swallow identified that the principles derived from the authorities, applicable to determining an application for an extension of time apply equally to an application for reinstatement of an appeal.
From those principles, the central issue is whether reinstatement of the appeal is necessary to enable the court to do justice between the parties, which is informed by the following factors:
(a)The extent of the delay and whether there is an adequate explanation for it;
(b)The nature and history of the litigation;
(c)The prospects of the applicant succeeding in the appeal;
(d)Any prejudice or consequence to the parties depending upon the result of the application.
The first reasons were delivered on 9 December 2021, and this application was filed on 24 December 2021. No attempt was made in the mother’s material to explain the delay in complying with the Registrar’s orders, but I infer it related to her earlier Application in an Appeal, and her alleged impecuniosity. However as I explained in the first reasons, the mother has significant assets, including a substantial sum of cash in the bank. Although her father now says those funds need to be repaid to him, why they have not been is unclear. They plainly remain under the mother’s power and control.
The litigation involves the parenting arrangements for the parties’ only child. However it appears as though the mother has recently commenced fresh parenting proceedings.
The Amended Notice of Appeal runs to some 14 grounds, as follows:
1.Her Honour made error of law in her failure to apply of the presumption of equal shared parental responsibility pertaining to s61DA(1) Family Law Act 1975.
2.Her Honour applied unlawful discrimination in breach of r41.01 Federal Circuit Court Rules in the determination that an “unidentified mental illness” in the Mother somehow affects her parental capacity.
3.Her Honour failed to recognise the fabrication of evidence brought about by the Expert Witness, Dr D, who made gross misdiagnosis of the most obscene kind towards the Mother stating she suffered from "schizophrenia" which was a fallacy and was a desired diagnosis led by the Father; causing Fraud upon the Court, leading the Court into serious error during interim proceedings, and leading to the removal of her daughter from her primary care during interim proceedings; which clearly on any layperson's and medical opinion, would exacerbate the trauma experienced by the Mother, causing PTSD and anxiety factors.
4.Her Honour, despite medical witness testimony, failed to attribute the mental stress and anxiety on the Mother as being likely caused by the fraudulent actions of the Father, the Court and of Dr D in removing her child from her care; which could be resolved by the return of her Child to her primary care.
5.Her Honour failed to recognise the authorities in Russell v Close and Starkey No 2 whereby the anxiety caused by the Court ordering the child to spend time with a person determined by the Court to require "Anger Management therapy" would degrade the health of the Mother and affect her relationship with the Child.
6.Her Honour failed to apply determinations of Family Violence where the evidence was presented to the Court to demonstrate a history of violence on the part of the Father.
7.Her Honour applied apprehended bias and Wednesbury unreasonableness in her decision to allow a young female child to live with an aggressive Father who was identified in Orders of Her Honour to require "Anger Management therapy".
8.Her Honour further demonstrated apprehended bias by failing to determine the clear Mental Illness of the Father in light of such need for Anger Management therapy.
9.Her Honour failed to determine the application of s60CC(2)(b) and s60CC(2A) regarding the Child's safety as the paramount consideration over and above facilitating a relationship with the Father who was identified as requiring "Anger Management therapy".
10.Her Honour failed to recognise the stalking behaviour of the Father as being seriously inappropriate to the parenting of the Child, and seriously disruptive to the Mother's mental health; in such a manner to place the Father at causation for the Mother's anxiety. This was not considered under s4AB of the Act by Her Honour as a clear demonstration of the Father as coercively controlling and violent towards the Mother, and using the Child as a weapon in "Court Strategy", bringing into existence the requirement for Her Honour to apply s60CC(2)(b) and s61DA(2) to make Orders in favour of the Mother.
11.Her Honour prejudicially determined outcomes, applied unlawful discrimination, and made threatening comments towards the Mother in line with Adacot v Sowle in relation to the Mother's medical approval by her practitioners not to be cross-examined by the Father, such that her PTSD trauma and anxiety would not be re-triggered by the Court. This was especially important in light of Her Honour's determination that the Father requires "Anger Management therapy" - in admission that the Father was in fact threatening towards the Mother.
12.Her Honour made error of law and in judgment in light of s60CC factors pertaining to the primary care and residence of the Child by:
a)failing to recognise the contribution of the Mother to the Child in her education, in relation to the Mother being a qualified educator of over 20 years;
b)failing to recognise the contribution of the Mother to the Child in her sporting, in relation to the Mother being a sports competitor for over 20 years and actively facilitating her child's development in that sport and in swim training.
c)Her Honour failed to recognise the full ownership of housing of the Mother, as opposed to the Father, who could present no stable home life for the Child.
and had suggested relocating to Brisbane away from the Mother.d)Her Honour failed to recognise the relationship between the Mother and Child as being important and paramount to the Child's Development in her best interests.
e)Her Honour failed to recognise the Father's irresponsibility towards his second child, in that he does not live with his new child and her Mother or contribute on a substantial basis to her life, and did not present the Mother of his second child to the Court to demonstrate that they are actually in a relationship at all.
13.That the Appellant suffered injustice by way of incompetent Counsel who failed to follow direct instruction and cross examine the Witnesses prudently to make proper findings of fact, particularly of medical fact.
14.That the Appellant suffered injustice by way of biased and prejudicial behaviour and discrimination by Counsel…who make sarcastic and rude comments regarding a self-represented litigant (who was supporting the Appellant on the matter) to the Judge during the course of proceedings; and where the Judge had presided over the matter of that same self-represented litigant in the past.
(As per the original)
Ground 1 is patently without merit – see the primary judge’s reasons at [99].
Ground 2 is not a competent ground of appeal, as the relevant rule referred to has no application in parenting proceedings.
Ground 3 contends an error of fact, however plainly it was open to the primary judge to accept the evidence of Dr D.
Ground 4 also contends an error of fact, however the primary judge was not obliged to accept the mother’s contentions.
Ground 5 does not reflect the mother’s case at trial (Metwally v University of Wollongong (1985) 60 ALR 68 at 71).
Ground 6 is not a competent ground of appeal.
Ground 7 ignores the fact that the mother was legally represented at trial, and no application for the primary judge to recuse herself was made by her counsel. It is unclear how “Wednesbury unreasonableness” is applicable here, but even if the mother is intending to refer to unreasonableness as recognised in House v The King (1936) 55 CLR 499, the ground nonetheless enjoys no merit.
Ground 8 again asserts bias, but as previously observed, no application for recusal of the primary judge was made at trial. To the extent this ground asserts an error of fact, the primary judge was not obliged to accept the mother’s contentions about the father.
Ground 9 overlooks the primary judge’s express reference to s 60CC(2A) of the Family Law Act 1975 (Cth) (at [75]) and her inability to make findings about family violence (at [85]).
Ground 10 ignores the primary judge’s inability to make findings as to family violence.
Ground 11 ignores the fact that, somewhat remarkably, the mother’s own counsel successfully submitted before the primary judge that the mother’s mental health issues meant she should not be cross-examined. There is no evidence of any misconduct by the primary judge in her conduct of the trial.
Ground 12 incorrectly asserts the matters particularised comprise errors of fact, however the primary judge was entitled not to accept the propositions contended for by the mother.
Ground 13 alleges incompetence of counsel. There is no material demonstrating any failure by the mother’s barrister to properly conduct her case, particularly given that counsel are not mere mouthpieces for their client.
Ground 14 alleges misconduct by the mother’s counsel towards one of the mother’s supporters. Even if that occurred, how it led to appealable error by the primary judge is completely unclear.
No ground of appeal enjoys merit, and the appeal enjoys no prospects of success.
No prejudice was asserted by either the father or the ICL. The mother contended she would be prejudiced, in that she will be bound by the decision of the primary judge, with which she strongly disagrees. However given the lack of merit of her appeal, and the strong presumption that the primary judgment is correct, that cannot comprise prejudice. In any event, as I have noted, the mother has commenced fresh parenting proceedings.
Weighing those matters in the balance compels the dismissal of the application for reinstatement of her appeal. The reinstatement of the appeal is not necessary to enable the Court to do justice between the parties.
CONCLUSION
Given the appeal will not be reinstated, it is unnecessary to consider those parts of the mother’s application which were predicated upon reinstatement. The Application in an Appeal filed 24 December 2021 will be dismissed.
COSTS
In the event that the Application in an Appeal was dismissed, neither the respondent nor the ICL sought any order for costs.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 15 February 2022
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