Rong & Huan (No 2) - [2022] FedCFamC2F 429

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rong & Huan (No 2) [2022] FedCFamC2F 429

File number(s): CAC 958 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 29 March 2022

Catchwords: FAMILY LAW – Parenting and property Applications – Stay application in relation to interim parenting Orders of 10 February 2022 – extremely poorly prepared Application made it impossible to determine what the grounds of appeal are – complete lack of evidence and complete poverty in the minimal authority cited – Application refused with all costs reserved potentially on an indemnity basis.

Legislation: Family Law Act 1975 (Cth) s 60CC

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

Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279

Bergmann & Bergmann [2022] FedCFamC1A 38

Bondelmonte v Bondelmonte (2017) CLR 662

CDJ v VAJ (1998) 197 CLR 172

Chapa & Chapa [2013] FamCAFC 52

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Goode v Goode (2006) 206 FLR 2021; (2007) 36 Fam LR 422

Gronow & Gronow (1979) 144 CLR 513

Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681

Jones v Dunkel (1959) 101 CLR 298

K & B (2006) FLC 93-288

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1

Sigley v Evor (2011) 44 Fam LR 439

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 2 Family Law

Number of paragraphs: 86

Date of hearing: 24 March 2022

Place: Canberra

Counsel for Applicant: Mr R Bell

Solicitor for Applicant: Mazengarb Family Lawyers

Counsel for Respondent: Mr J Haddock

Solicitor for Respondent: Mark Hanna Lawyers

Solicitor for Independent Children’s Lawyer: Legal Aid ACT

ORDERS

CAC 958 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RONG
Applicant

AND:
MS HUAN
Respondent

LEGAL AID ACT
Independent Children’s Lawyer

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

29 MARCH 2022

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The Application in a Proceeding, filed 10^th March 2022, seeking a stay of the Orders of the Court dated 10^th February 2022, be refused and dismissed.
2.The parties’ costs be reserved, including indemnity costs.

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 Rong & Huan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

On 29^th March 2022, the Court pronounced Orders and delivered abbreviated reasons. What follows are those reasons in full for the Court’s refusal of the Father’s Application for a stay of the Orders made on 10^th February 2022.
These are difficult reasons. They have been prepared urgently under significant difficulty at every level, including the Court’s completely oppressive workload. They concern an urgent Stay Application brought by the Father regarding interim Orders made on 10^th February 2022. Unfortunately, like the Stay Application itself, I suspect that these reasons will also be difficult to read.
I intend no offence by the direct if not blunt comments that I am compelled to record, regarding the abjectly poor, and consistently incomprehensible, terms of the Stay Application and most of its supporting documents. Indeed, and again, most regrettably, the Stay Application is one of the worst, and most poorly prepared, Applications that I have seen in many a long year. Its deficiencies were almost too numerous to list, let alone weigh up as required by authority, regarding the relative strength of the Grounds of Appeal. The Grounds and the submissions were diffuse, in every respect. In short, the Application was devoid of detail, notably not a single paragraph reference anywhere from the primary judgment. It was replete with generalised, repetitious complaints; and it made no reference to any relevant authority – apart from a reference to the Full Court decision in Aldridge & Keaton (discussed below). The language and purported arguments were either so florid as to defy comprehension, and/or they were so imprecise and overlapping that it was impossible to discern what precise legal or factual contention was being advanced.
For example, Ground 2 (details set out later in these reasons) contains a single sentence of 10 lines, with a series of semi-colons after each complaint, but without a single reference to any specific part of the primary judgment, or to any supporting evidence (e.g. from the transcript). Ground 6 contains 17 lines, again without precision, and like all other Grounds, makes no reference to any specific paragraphs of the primary judgment, or to any authority. This Court effectively must divine the detail.
Ground 6 begins with this sentence: “The reasons are inadequate and support inferences of unfairness denial of natural justice [sic] and over abbreviated [sic] process.” Leaving to one side various words seemingly missing to give better sense to the claims, there are three contentions: (a) inadequate reasons (claimed in other Grounds also but the repetition of the same Ground is never explained); (b) inference of “unfairness of denial of natural justice” (presumably the tautology and/or duplication of the single complaint, described twice, of “unfairness” and “denial” were intended); and (c) “over abbreviated process”. The missing hyphen was also presumably intended.
“Inferences” are not usually sufficient bases for Grounds of Appeal. Regrettably, to note a very regularly made issue in these reasons, some details of them, or upon which they are based, are usually required. None are provided here. Likewise, details of what constituted the alleged denial of natural justice would usually be required, as would details regarding the allegation of “over abbreviated process.” Absence of relevant details of such claims makes it impossible for the Court to comprehend, as well as to evaluate (as required), such unparticularised contentions. Moreover, there is no reference by the Father either to (a) the transcript of the hearing in November 2021 (which his lawyers obtained after the hearing), or (b) any submission or Affidavit, that either attests to or supports such generalised, unspecific claims.
Both parties were represented at the interim hearing by experienced Counsel.[1] Neither of them made any complaint at the time, or at any time since, about any “over-abbreviated process”, or that anyone was “unfairly” denied “natural justice.” Like the rest of the purported Grounds, the materials and the purported arguments in support of them, are embarrassing. They are contrary to what was argued at the interim hearing. They are embarrassing to read; they are embarrassingly impossible to decipher; and they are embarrassingly impossible for the Court to appraise in the absence of relevant detail and coherently plausible evidence.
[1] Neither of the Counsel who appeared at the interim hearing appeared at the hearing of the Stay Application.
So poorly crafted is this Ground, as well as the other Grounds, and each Ground is so lacking in evidence that they are embarrassing. There is no evidence to support any of the Grounds. Grounds of Appeal should be immediately clear and succinctly stated. The Grounds here are neither. Worse still, a number of them are completely erroneous, not least because they are contrary to, or different from, what the Father’s Counsel argued at the interim hearing. As such, they are improper. It is a dereliction of duty to the Court to argue in this Application what was argued to the contrary, and not advanced, at the interim hearing. Extracts from the transcript at the interim hearing last November are set out later in these reasons.
The broadly cast, narrative-form Grounds of Appeal suffer from general incoherence. Apart from various forms of inference, most regrettably, they are little more than a series of generalised but constantly overlapping complaints, which have neither general, nor specific, reference to, or consideration of, any of the following:
(a)specific paragraphs in the primary judgment of this Court, dated 10^th February 2022;
(b)particulars of what are a series of regularly repeated, unspecified complaints and broad assertions regarding the Court’s February 2022 decision;
(c)similarly generalised complaints regarding the conduct of the interim hearing at which both parties were represented by Counsel; and
(d)apart from a reference to Aldridge & Keaton, no reference to any relevant authority in support of any of the bald assertions made by the Father.
Among other things, this last area of concern regarding the dearth of relevant authority – other than some oblique but still insensitive, if not offensive (especially in these very troubled times), reference to a former Russian satellite or space station called Mir – was particularly creative given the list of authorities to which this Court referred in the primary reasons. Those authorities included the important High Court decision of Bondelmonte v Bondelmonte.[2] The Appellant Father’s lawyers never referred to this signal decision, or to any of the other authorities cited in the principal judgment. To complain about the Court’s use of authorities but not cite a single one in support of his arguments was, as the colloquial saying goes, “a bit rich.”
[2] Bondelmonte v Bondelmonte (2017) 259 CLR 662.
Given that, according to authority noted below, a specific task of the Court is to make an assessment of the likely success of the grounds of appeal, the opacity, imprecision, lack of particulars or any other detail (noted also by the Independent Children’s Lawyer in her written submissions) made this task of the Court problematic, at least, and virtually impossible, at worst. Put in different terms and alternative terms, a party cannot benefit from the failures and omissions in his own case, as is plainly the case here.
So poor was the Application in every respect it also (a) needlessly prolonged the hearing because of the various attempts to clarify documents, the Grounds of Appeal, and much else besides, and in consequence, (b) was so imprecise in the documentation filed that the lack of clarity almost constituted procedural unfairness because the obfuscated issues and purported arguments largely denied the Mother, the Independent Children’s Lawyer (“the ICL”), and the Court, from knowing what was being argued and therefore what was the appropriate response.
More succinctly, the newly appointed ICL stated in her written submissions (par.2): “… the grounds of appeal are confusing and difficult to understand. The ICL therefore at this stage is unable to make any assessment as to the strength of the appeal.”
Respectfully, I should note the following in relation to the ICL’s understandably brief submissions – through no fault of her own.
As already noted, it is a primary task of the Court, among other tasks, to assess the strength of the appeal for the purpose of determining the Stay Application. However, in light of the fact that the ICL (a) had not been appointed at the time of the interim hearing, (b) has not had access to the transcript of that hearing despite requesting it from, but being denied it by, the Father’s lawyers, and (c) as just noted, the ICL had difficulty in working out the “confusing and difficult to understand grounds of appeal”, the weight that the Court can properly give to the ICL’s submissions is necessarily quite limited.
By way of further, brief example of the difficulties encountered in the Father’s material, among the Orders sought attached to the Notice of Appeal (located at Annexure C), filed just at the end of the statutory appeal period on 9^th March 2022, proposed Order 3 was in the following terms:
In the event the appellate Court determines it will not re-exercise discretion Order [sic] that the parties [sic] respective applications or responses be remitted for rehearing before a Judicial Officer other than the learned trial Judge.
Apart from calculated guesswork, neither a party, nor the Court, should be required to engage in some form of hermeneutical exercise to divine or to decipher what is meant or intended by what is set out in the documents filed.
At the hearing, at a quite late hour, I sought clarification of what proposed Order 3 actually meant. Some of those queries are set out later in these reasons. On its face, it could mean a number of different things, ranging from if the Appeal is allowed, or even if the Appeal is dismissed. On its face, it even suggests – perhaps – an exercise in a type of forum-shopping, here “Judge shopping.” If this were to be the case, it would be totally improper. In my view, this was one of the more benignly imprecise pieces of drafting in the “appeal papers.” To state the obvious: lack of clarity and imprecision in documents, even basic (and especially regular) infelicity of expression, can obscure, rather than make clear, what is actually sought or intended. Regrettably, such faults and many others were prominently on display here.
For the reasons already given, and those that follow, the Father’s Stay Application, per his Application in a Proceeding, filed 10^th March 2022, must be refused and dismissed. I reserve all parties’ costs, including indemnity costs.
Grounds of Appeal
Because they are so central to what follows (and obviously to what has been said already), it is important that the Grounds of Appeal are set out in full here:
1.That His Honour's discretionary decision miscarried by reason of error in principle in failing to provide adequate reasons addressing and determining the case advanced by the Appellant he should find it is not a proper exercise of discretion in the sense directed by the legislative pathway in the Family Law Act 1975 (Cth) ("the Act") to make orders as he did.
2.His Honour erred in principle when in truth he failed to conclude any principled reason (or provide discernible reasons) why it would be a proper exercise of discretion to make such parenting orders at that time on those terms and which involved significant abrupt change if not rupture; beyond briefest consideration of marital history; broad reference to authority; formal incorporation of parties' (written) proposals; formal incorporation of (written) submissions (relied upon or not); virtual blanket adoption of what His Honour perceived as the Mother's position derived from her incorporated written position (without apparently considering oral submissions); and taking into account to the point of elevating irrelevant complaints on financial disclosure to permit broad sharp disruptive urgent orders with obvious attendant risk of at least psychological harm especially for [Y].
3.That His Honour's discretionary decision miscarried in failing to take into account relevant facts in assessment of matters pursuant to the Act, including the Father's asserted facts on domestic violence by the mother; her unnecessary involvement of [X] in the dispute (now an unnecessary risk for [Y]); roles of paternal grand-parents which were on any view significant and a mandated 60CC consideration but which with other mandated considerations was minimised or ignored; Benefits of schooling in China and other matters. A minimal fact-finding consideration would not lead to abrupt termination of home school and country without safeguards of any kind including amongst others practical involvement (not merely appointment) of an ICL the input (as opposed to appointment) of a report and consequent inputs. The artificial construct of "cart before the horse" was in reality a family re-arrangement for a Report. This vastly exceeded discretionary latitude. His Honour should at the least circulated a draft order or invited the parties to draft same and which would take into account matters including but not limited to schooling, flight patterns, health visa issues the safety of the child and the ability of the child to be free of undue pressure by the mother (which required the Judge to the consider the father's evidence concerning [X]).
4.His Honour's discretionary decision miscarried and exhibited bias or predetermination; the Mother's alleged concerns attracted no scrutiny or inquiry despite the Appellant directly challenging her as to the accuracy of many matters including factual matters above; and the likely impact of unnecessarily and abruptly flying [Y] into the heart of family litigation. Working backwards from predetermination involved tensions and inconsistences such as disregarding the history of [Y] arrangements to work off current circumstances but making pejorative comments of the father's role without evaluating why the Mother eschewed historical inquiry. Likewise the Court irrelevantly raised a visa gap in the father's evidence but not the mother's; likewise a health evidence gap in the father's evidence-not raised by the mother and with no forensic inquiry of this issue or any issue in her case.
5.That His Honours decision involved a pre-determination of the outcome the confidence of which then appeared to permit failure to address the legislative pathway. This impermissible approach was bolstered by unjustified blanket adoption of the mother's case (encouraged by taking into account in a significant way irrelevant financial disclosure complaints) distracting from risks or detriments to [Y] especially. The failure of process about possible listing likely accentuated this. Perhaps attention was directed to one aspect about practicalities. Possibly the Order for the Father pays the costs of travel may address one practicality. Absent reasons it may be better explained as uncritical adoption of the mother's position with attendant bias and reasons and possible pathway failures. In the same way the only point His Honour may have considered potential difficulties for [Y] coming to Australia (but may have been referring difficulties with existing issues -it is wholly unclear) is where he declined to adopt recommendations of the report writer and instead tweaked the Mother's orders to provide less time with the father than the Report writer recommended.
6.The reasons are inadequate and support inferences of unfairness denial of natural justice and over abbreviated process. His Honour's discretionary decision miscarried in that notwithstanding reference to not making formal findings he operated on facts or a sufficient operative framework that necessitated proper analysis and reasons and involved miscarriage of discretion especially as proposed Orders were unsupported by the pathway, statutory considerations or reflecting the guidance of authority. Indeed with appropriate analogy it was a greater pathway failure than Mir. Even if - which is disputed - on proper analysis [Y] arrangements in China (and -without justification- ignoring flexibility of any kind) do not find favour with the Court in due course after principled consideration; it does not permit a dismissive approach that the family arrangements were interesting and in reality treated dismissively. This was an unfortunate approach to the parties arrangements and their cultural heritage including - as cannot be doubted in contemporary multicultural Australia - a strong involvement in parenting by grand-parents. Overly benevolent conjecture favourable to the Mother and correspondingly overly critical assessment of the father encouraged predetermination -perhaps with license by reference to not making "formal findings" - the upshot failure to give focused attention to the father's evidence on almost any issue;
7.Notwithstanding regular intrusion including by the Court in a short hearing as to disclosure (the specifics of which would be disputed) the only occasion the trial Judge took a relevant course connected to finances was to take a position unduly favourable to the mother regarding the cost of travel to Australia. Such matters are often split or paid by a party and adjusted later but imposed entirely on the Father. No reasons were given.
8.His Honour took into account to the point of the process being overly distracted and influenced by disclosure complaints. His Honour erred in fact in making inconsistent findings or operative conclusions informing the exercise of his discretion; including incorporating the father's written reasons in the judgement but conducting the hearing on the basis they were excluded but incorporating them in his Reasons. As a result by implication, whilst formally incorporated they were not taken into account. Alternate explanations do not overcome ambiguity inadequate reasons and failure to take into account all the evidence and taking into account irrelevant considerations. This was compounded with blanket adoption of the Mother's position however "tweaked". As a result, His Honour without reasons, or explanation required the Father to hand in his passport forthwith. The Father's counsel had expressed concern about the mother's written proposal to that effect which may mean the Father must remain in Australia. Counsel for the Mother properly reassured otherwise. The Court's adoption of the Mother's written draft orders suggests oral submissions were given little if any consideration as part of an unnecessarily abbreviated consideration. Overall the result is well outside the most generous ambit of discretion.

Paragraphs 5 – 9 of the Father’s second Affidavit, filed 10^th March 2022, provide a somewhat better overview of the complaints. This is so notwithstanding some plain and glaring inaccuracy in some of his contentions, such as that the Court ordered him to file an “undertaking with the Court that I have understood the Orders.” No such Order was ever made. Why and how his legal advisers would permit such a glaringly inaccurate statement to be made is unfathomable. Assuming that he was intending to refer to Order 2 of those made on 10^th February 2022, that Order provided as follows:
2. Within 48 hours of the making of these Orders, the Father shall file a written undertaking, by which (under oath or affirmation) he confirms that he will comply with all Orders of the Court regarding the return of [Y] to Australia as soon as possible.
In short, the issue was one of compliance; it was not confirmation of comprehension of the Orders.
For ease of reference, I set out here paragraphs 5 – 9 of the Father’s 10^th March Affidavit:
5. On 10 February 2022, I also received a copy of the Reasons for Judgment from the Court. Annexed hereto and marked with the letter “-02” is a true and correct copy of the Reasons for Judgement dated 10 February 2022. I understand His Honour’s decision is as follows:
a. That I file an undertaking with the Court confirm that I have understood the Orders.
b. That I surrender my passport.
c. That I do all acts and things and sign all documents to return [Y] to Australia
d. That I pay for all expenses related to effect [Y] return to Australia
e. That I file an Affidavit outlining the steps I have taken to effect [Y] return to Australia.
6. On 7 March 2022, I instructed my solicitor to file a Notice of Appeal in the Eastern Court of Australia seeking to appeal Orders dated 10 February 2022. My solicitor’s filed a Notice of Appeal on 9 March 2022. Annexed hereto and marked with the letters “-03” is a true and correct copy of the same.
7. I understand that the essence of my Appeal is as follows:
a. There are no adequate reasons addressing and determining the case against me.
b. There is no exercise of the Court’s discretion or conclude on principles reasons for such an abrupt change to the parenting beyond any further consideration given the marital history of [Ms Huan] and I.
c. The decision did not take into account the relevant facts pursuant to the Family Law Act 1975, including my facts relating to [Ms Huan]’s history of domestic violence against me, her unnecessary involvement of [X] in our dispute, the role of my parents and mandated section 60CC considerations. The decision to remove [Y] from China is abrupt which not only affects his education, but also places him in a foreign country without safeguards of any kind.
d. There is a level of bias from the Court as [Ms Huan]’s alleged concerns attracted no inquiry despite me challenging the accuracy of these including factual matters and unnecessarily and abruptly flying [Y] in Australia and place him in a situation where [Ms Huan] and I are dealing with family litigation.
e. There was an unjustified blanket adoption of [Ms Huan]’s case which was distracted by my lack of exchange of financial disclosure which has now risked detriments to [Y]. This was heightened by directing me to solely be responsible to pay for the costs associated with arranging for [Y] return, including airfare tickets.
8. I am concerned that [Y] is having to abruptly change his residence, school, reside in a foreign country and travel on an aeroplane within days, and leave his primary care givers without the Court having to consider the Appeal.
9. I am concerned that [Y] will be severely affected by this before the Appeal court has had the opportunity to hear the Appeal.
It is as well to note two things here. First, it is clear from par.7c of this Affidavit that the Father regards Australia as “a foreign country without safeguards of any kind.” At the hearing, Counsel sought to explain this as simply a reference to Australia not being the country in which the child currently lives. In my view, this was not clear from, or clarified in, the Affidavit, nor was it an appropriate comment in relation to a child who was born in this country and where his parents, and younger brother, continue to live. It should not be necessary to have plainly written statements in Affidavits explained to the Court as to what was actually intended by the deponent of the Affidavit. Further, what “safeguards” are relevant and not available in Australia, like much else, was never specified. How and why “safeguards” are necessary for the country in which Y was born, and in which his parents and brother live, was both remarkable and incomprehensible, and in the absence of relevant details, inappropriate.
Secondly, I note the following submission made by Counsel for the Mother at the interim hearing, which highlights clearly one of many anomalies in the Father’s Application, relevantly to have the Court make an Order for equal shared parental responsibility for both of his sons, obviously including Y who is currently living at boarding school in China. Thus (emphasis added):[3]
DR LESLIE: In relation to [Y], I have already raised the issue of the powers of the court, and this is a really significant issue that my friend has not made submissions in relation to. What power your Honour could possibly have to make an order that a child live in a foreign country with a person who is not that child’s parent and not a party to proceedings over the objection of a parent who, on any party’s evidence, is willing and able to appropriately care for that child is a completely [sic] mystery to me, your Honour. How your Honour could come to that position on the evidence that you have at law is unknown. My learned friend has not - - -
HIS HONOUR: Sorry. Does it follow from that that the order for equal-shared parental responsibility for both boys, but specifically in relation to [Y], would in those circumstances really be a nonsense order?
DR LESLIE: Yes, your Honour, which is why we don’t seek it…
[3] T 21.
In addition to what follows later in these reasons, it is as well to set out some of the Court’s attempts to clarify the Grounds of Appeal (and other things) at the outset of the hearing of the Stay Application. While the whole of the transcript from page 2 until the completion of Counsel for the Father’s primary submissions concluded is relevant, for current purposes I need only note the following from it to highlight the ongoing difficulties for the Court, the Mother’s Counsel and the ICL. It is plain to see the number of times that I sought clarification of the Grounds of Appeal and how the Court should best deal with them. Accepting completely Counsel’s assurance of assistance and courtesy, doubtless because of my own inadequacies, I remained largely unenlightened.
It will be seen that, on one occasion at least, Counsel for the Father seemed to suggest (at p.8 of the transcript) that the Grounds of Appeal were crafted in terms that he described as “abbreviated, less than helpful but permissible grounds.” Likewise, Counsel seemed to confirm (at p.12 of the Transcript) that, notwithstanding the claim of bias in the Grounds of Appeal, there was in fact no bias of any kind but really the focus was on [apparent] “predetermination”, which again was never claimed during the interim hearing, or at any time since.
To put it somewhat colloquially, the Grounds of Appeal, and the submissions in support of them during the Stay Application hearing, were something of a “moveable feast.” Equally colloquially, and respectfully and regrettably, every attempt to batten down a particular Ground, any of the elements of it, or the arguments likewise in support, was akin to nailing jelly to the wall, so flexible was the material that was being served up to the Court for consideration and attempted clarification.
The quite disjointed, and extremely discursive, initial submissions, were as follows (emphasis added):[4]
[4] Transcript (24^th March 2022) pp.2 – 16. Hereafter, references to the transcript from the hearing of the Stay Application will be “TS” followed by page number. Any references to the transcript from the Interim Hearing in November 2021, will simply be to “T” followed by page number.
HIS HONOUR:   Sorry. I just want to clarify a couple of things here and then I will go to the grounds of appeal if that’s ‑ ‑ ‑
MR BELL:   Yes, your Honour.
HIS HONOUR:   ‑ ‑ ‑ satisfactory, and the grounds of appeal I take to be as per the notice of appeal and annexure B; correct.
MR BELL:   Annexure B where it says “Further Notice of Appeal”.
HIS HONOUR:   Yes.
MR BELL:   Yes.
HIS HONOUR:   Okay. But firstly, though, in the father’s affidavit, paragraph 7:
I understand the essence of my appeal is as follows –
right. And I haven’t tried to do any sort of correlation between these five grounds and those in annexure B, but – so I’m just trying to clarify this first.
MR BELL:   Your Honour wouldn’t not take that as being some sort of different prism through which to look at the matter.
HIS HONOUR:   No, no, no ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   I’m – again, it ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   The – I’m just simply trying to clarify ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ given that obviously the responsibility falls to me ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ to write a judgment to deal with the stay application. So I’m just – this is the evidence that the father files and, obviously, having regard to the grounds of appeal which I will get to in a moment. So I’m just trying to clarify things. So 7(a), no adequate reasons. 2, a question about the exercise of discretion. 7(c) says I didn’t take into account facts regarding [Ms Huan]’s history of domestic violence, “the role of my parents”.
So we will get to this shortly, but, given that it was raised in the interim hearing, that there’s no evidence from the grandparents. So it’s a bit hard to take into account or to be criticised not taking into account evidence that was not provided, because there’s nothing from the grandparents. Then it says – so this is the last sentence:
The decision to remove [Y] from China is abrupt which not only effects his education but also places him in a foreign country without safeguards of any kind.
Now, on its face, that seems to suggest that Australia is being spoken of as a foreign country without safeguards; is that correct. I mean, that’s just – that’s the way ‑ ‑ ‑
MR BELL:   The ‑ ‑ ‑
HIS HONOUR:   ‑ ‑ ‑ it reads on its face.
MR BELL:   The – well, the impact is that he is removed from a country in which he has been living for some years ‑ ‑ ‑
HIS HONOUR:   No. I ‑ ‑ ‑
MR BELL:   ‑ ‑ ‑ to another country.
HIS HONOUR:   I – yes.
MR BELL:   Is the word “foreign” – it – it’s not “foreign” in the sense of a takeover legislation. It’s “foreign” in the sense of another country different from which he has been living in for five years ‑ ‑ ‑
HIS HONOUR:   But ‑ ‑ ‑
MR BELL:   ‑ ‑ ‑ and in circumstances where ‑ ‑ ‑
HIS HONOUR:   I’m sorry, “Without any safeguards of any kind”. I mean, what sort of “safeguards” is being referred to here. You know, are we all unsafe or whatever is – I’m – again, I’m just trying to understand ‑ ‑ ‑
MR BELL:   There are no – sorry, your Honour.
HIS HONOUR:   No, no.
MR BELL:   The – if this was a typical case in which parties every day of the week, bread and butter case, with no legal issues in it, it would be conventional that if there were to be changes in arrangements – I’m just picking the most easy and obvious examples – there might be a discussion with the ICL, there might be the involvement of the report writer or a counsellor, there might be some way to moderate the impact of change. It wouldn’t simply be land at [City H] and land at [City J], and that’s the sort of thing that can buffer significant change. That’s the sort of thing that would be a safeguard.
HIS HONOUR:   But as I understand it from the father’s earlier affidavit where he talks about his discussions with the child and that he will be there to meet him, all those sorts of things, that that would seem to be more than a buffer or so, wouldn’t it.
MR BELL:   No, your Honour. With great respect, I would not concede and would submit to the contrary that the capacity of the father or a relative to meet a child is an adequate safeguard in those circumstances.
HIS HONOUR:   Right. Thank you. So then, 7(d), there’s the contention in relation to bias, and then, 7(e), an unjustified blanket adoption of [Ms Huan]’s case. That I – giving every allowance, which I am prepared to do subject to hearing from anything else, of – that the father – can I take judicial notice of the fact that English is not his first language.
MR BELL:   I don’t actually know how good it is, but it wouldn’t be his first language, but I – I’m not – I don’t want to say anything wrong from the bar table.
…
HIS HONOUR:   I understand, and I’m – so I’m trying to give appropriate concessions as is ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ proper. So now if I may just go again, for the reasons that I’ve already given, namely, because, as you know, that in matters of this kind I have to go through the grounds of appeal; correct.
MR BELL:   It’s one of the topics. Yes, your Honour.
HIS HONOUR:   Yes. But – because I have to make an assessment, generally. So I’m just trying to – because, again, this – so this is annexure B. In somewhat more abbreviated form, so that I can get – I have to say – a better handle on the grounds of appeal than I do at the moment because there seems to be a mixing of grounds of appeal and submissions in the grounds of appeal.
MR BELL:   There is – I’m not sure what your Honour’s experience is. There are some experience your Honour might see of appeals that are just your classic, basic ‑ ‑ ‑
HIS HONOUR:   Yes.
MR BELL:   ‑ ‑ ‑ half a dozen lines ‑ ‑ ‑
HIS HONOUR:   I understand.
MR BELL:   ‑ ‑ ‑ against the weight of evidence.
HIS HONOUR:   Yes.
MR BELL:   These are not the submissions.
HIS HONOUR:   I – well ‑ ‑ ‑
MR BELL:   But – and your Honour fairly says ‑ ‑ ‑
HIS HONOUR:   I understand.
MR BELL:   ‑ ‑ ‑ that – it does, and there are – it’s true, and it’s also true that had we wished to – or anyone wished to delay proceedings, those abbreviated, less than helpful but permissible grounds could have been put, and then it would take its course down the track if ‑ ‑ ‑
HIS HONOUR:   Well, could ‑ ‑ ‑
MR BELL:   ‑ ‑ ‑ but these are not the ‑ ‑ ‑
HIS HONOUR:   Could I just attempt ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ this, and obviously in raising these matters with Mr Bell I’m inviting everyone else to make any comments ‑ ‑ ‑
MR BELL:   Of course, your Honour.
HIS HONOUR:   ‑ ‑ ‑ when their turn comes. So paragraph 1 seems to have three things in it, or at least 2; inadequate reasons and an improper – or not a proper exercise of discretion, is that a fair description, Mr Bell.
MR BELL:   That – that’s not unfair, your Honour. I’m not going to die in a ditch over the precise felicity of what was ‑ ‑ ‑
HIS HONOUR:   Well ‑ ‑ ‑
MR BELL:   ‑ ‑ ‑ typed fairly ‑ ‑ ‑
HIS HONOUR:   ‑ ‑ ‑ again, but given ‑ ‑ ‑
MR BELL:   ‑ ‑ ‑ quickly.
HIS HONOUR:   Given what’s ‑ ‑ ‑
MR BELL:   But I think your Honour knows what ‑ ‑ ‑
HIS HONOUR:   Yes. Given ‑ ‑ ‑
MR BELL:   ‑ ‑ ‑ the point is.
HIS HONOUR:   Given what I’ve got to deal with ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ etcetera, so then, paragraph 2:
His Honour erred in principle –
although the principle is not identified as to what I didn’t apply. So – but all of it, if I read it as best I can, it really goes to the exercise of discretion; am I ‑ ‑ ‑
MR BELL:   Well, no ‑ ‑ ‑
HIS HONOUR:   Am I right in that or not.
MR BELL:   That’s not correct. It’s an error ‑ ‑ ‑
HIS HONOUR:   Well, hence ‑ ‑ ‑
MR BELL:   Well ‑ ‑ ‑
HIS HONOUR:   Hence, I’m interested to find out.
MR BELL:   Yes. Yes. Well, firstly, the reasons point is not a discretion point. There’s no discretion that is wide enough to obviate the need for principal reasons to ‑ ‑ ‑
HIS HONOUR:   Yes. No, no, so reason – reasons was in 1. I’m looking at 2.
MR BELL:   Well, then ‑ ‑ ‑
HIS HONOUR:   Yes. Or is this more like particulars of 1.
MR BELL:   Well, your Honour, it – it’s – I wouldn’t describe it as particulars of 1. It is an error in principle when there is no – it is an error in principle – and perhaps we’ve used the word more than we needed to, but an error in principle where there is no discernible pathway followed for the exercise of discretion. Now, whether or not that is said to be reasons or whether the pathway isn’t obviously followed is a matter of some pedantry if there is no discernible approach for the principled reasoning process. Now, that will be found in a lack of reasons but it’s – it still comes down to the necessity for the pathway, a necessity for a clear position on important matters, and appreciating that it’s a – an urgent matter and an interim matter in all of those things.
The epithets about being urgent, the epithets about doing the best you can in a busy list and so on, they are applicable to smaller, less dramatic outcomes. They are applicable to an adjournment. They are applicable to a subtle change. Not what would be a significant change and it is impossible to divorce from that the timeframe. Your Honour, my – it’s not stated in 2, but, your Honour, the fact is these are parties who, in less than three weeks, are attending on the family report writer. So, in those circumstances, this can’t be seen as a – one of those busy list abbreviated reasons pressured outcomes in circumstances where significant change is being made ahead of the evidence.
HIS HONOUR:   Well, again, at this stage I’m just trying to get ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ a handle on what is the ground of appeal in 2 because otherwise, amongst other things – and I would be grateful to receive from everyone – but especially from your instructor ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ in Word version so that it could be inserted into the reasons, because the Full Court is going to need obviously what’s the ground of appeal ‑ ‑ ‑
MR BELL:   Well, your Honour ‑ ‑ ‑
HIS HONOUR:   ‑ ‑ ‑ and how do I deal with it. So ‑ ‑ ‑
MR BELL:   Your Honour, I’m not going to reach out and grab Sir Garfield Barwick’s reference to needing to amend 12 times, but both the – but all the parties will vary what they put in the precise way in which they’ve put it in the appeal itself. That, in my respectful submission, is not your Honour’s task. That overly – and I’m not saying it’s not relevant. It is relevant. Aldridge & Keaton says it’s relevant. But the – one of the key distinctions between Aldridge & Keaton on appeal and Aldridge & Keaton at first instance, his Honour, the former Chief Judge – his Honour Judge Pascoe – one of the key differences is, and we say that essentially the mother largely adopts the trial decision overturned on appeal, is to put kind of competitive spotlights on the precise grounds – this might succeed, this might succeed – when that’s not the test. The test is a list of items ‑ ‑ ‑
HIS HONOUR:   I am just trying to work out what the list is.
MR BELL:   Well, the list – well, your Honour, I’ve – we’ve – I would respectfully seek formal admissions from the mother that the appeal will be nugatory.
HIS HONOUR:   No, no, I understand – no, no, no, sorry, we will get to that ‑ ‑ ‑
MR BELL:   But that’s it.
HIS HONOUR:   Please, I’m ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   I’m trying to bring a degree of order and method to very expansive narrative forms of grounds of appeal, and I have to make some sort of assessment whether or not it be true or otherwise that, on appeal, what’s argued, the Full Court is going to be asked to go through all of these grounds and say, well, what are the grounds. Well ‑ ‑ ‑
MR BELL:   Well, your Honour, what would typically happen with grounds that are more expansive than the broad summary grounds that are sometimes filed, would be that the submissions themselves would tease out these matters and in ‑ ‑ ‑
HIS HONOUR:   I understand.
MR BELL:   ‑ ‑ ‑ far more detail.
HIS HONOUR:   I am just trying to find out what am I meant to be making a decision about. I might, just for the purposes of ‑ ‑ ‑
MR BELL:   Sorry, your Honour. I didn’t mean to interrupt your Honour. It was ‑ ‑ ‑
HIS HONOUR:   No, no, no.
MR BELL:   Yes.
HIS HONOUR:   Just for the purposes of this afternoon – paragraph 2, ground 2, as I will describe it, I might, for the purposes of discussion and maybe also the purpose of trying to write something, refer to it under the general heading of “Exercise of discretion with various particulars that are set out in paragraph 2”. Now, perhaps it might have to be somewhat similar in relation to the larger paragraph 3 which begins, as it plainly says:
His Honour discretionary decision miscarried failing to take into account relevant facts in assessment of matters pursuant to the Act.
So then it goes through a list of those – so, again, it seems to be exercise of discretion and failure to take into account A, B, C, D. Are you content if I was to at least summarise it in those terms because, obviously, the Full Court is going to have all this before them anyway.
MR BELL:   Yes. If your Honour – I apologise we’ve – if we should have assisted your Honour with a Word version. So that’s – but if your Honour ‑ ‑ ‑
HIS HONOUR:   No, no, no, that’s ‑ ‑ ‑
MR BELL:   ‑ ‑ ‑ was proposing, as a matter of record, to incorporate it, well, your Honour, we’re not going to be squeamish about a sensible – which I’m sure it is – summary of what we’re saying. I don’t expect your Honour to be troubled by repeating it all.
HIS HONOUR:   And then – sorry, if I can go then to paragraph 4:
His discretion decision miscarried and exhibited bias or predetermination.
What sort of bias are we talking about here; actual ‑ ‑ ‑
MR BELL:   No. It’s ‑ ‑ ‑
HIS HONOUR:   ‑ ‑ ‑ apprehended. It has never been raised and there’s no authority referred to anywhere. So ‑ ‑ ‑
MR BELL:   The references to predetermination are focusing on the cart before the horse sense that, “Well, the child is going to come to Australia anyway. Let’s just do it straightaway” kind of approach, and it did – well, we will be submitting that it did convey that flavour of predetermination. Would an independent person, in line with Ebner, think that there was a degree of – predetermination is not malice and it’s certainly ‑ ‑ ‑
HIS HONOUR:   No, no, I understand that.
MR BELL:   And it’s certainly not – I always mispronounce the recent case before the High Court. It’s certainly nothing – it’s nothing critical in that sense. Predetermination can be simply a preliminary view that is overshadowing other matters. I’m in a hearing where a judge said, “Well, this has got to happen, hasn’t it. Whoops. I think I’m out of the case.” Perfectly honest. No question that it was ‑ ‑ ‑
HIS HONOUR:   But, I mean, that’s not suggested here though.
MR BELL:   No, no, no, no.
HIS HONOUR:   No.
MR BELL:   That judge said, “I’m self-disqualifying” ‑ ‑ ‑
HIS HONOUR:   Yes.
MR BELL:   ‑ ‑ ‑ “in view of what I’ve just said”.
HIS HONOUR:   Yes. Yes. Yes. Yes.
MR BELL:   No. I’m saying that a predetermination – because your Honour used the word “criticise”. I – it’s not a criticism. Predeterminations can simply be a view which overshadows other matters.
HIS HONOUR:   Right.
MR BELL:   And ‑ ‑ ‑
HIS HONOUR:   Okay. And then does ‑ ‑ ‑
MR BELL:   We can say that ‑ ‑ ‑
HIS HONOUR:   So then 4 and 5, do they sort of largely run together where there’s a mixture of bias, which is stated in 4 and 5 because that’s the predetermination thing, and then reference to financial disclosure issues, but I don’t recall – I’m happy to be corrected. I don’t recall that actually any orders were made about financial disclosure. There was some ‑ ‑ ‑
MR BELL:   There was a notation, I think, your Honour.
HIS HONOUR:   There was a notation of something or other ‑ ‑ ‑
MR BELL:   I think your Honour’s judgment might have commenced with a reference to financial disclosures. Your Honour, I’m probably ‑ ‑ ‑
HIS HONOUR:   Yes.
MR BELL:   I will make only one claim amongst my learned friends and myself and that is your Honour won’t hear from me anything against full disclosure or your Honour’s concerns about full disclosure. But having been in Chang & Su at trial, appeal, special leave and 79A ‑ ‑ ‑
HIS HONOUR:   I use it – I know that’s in your submissions and I ‑ ‑ ‑
MR BELL:   But ‑ ‑ ‑
HIS HONOUR:   And I use Chang & Su regularly, but in this case ‑ ‑ ‑
MR BELL:   But it – Chang & Su is not – there are issues and seminar papers on Chang & Su. It can also be waved about a little bit for – as a distraction and it wasn’t relevant to this case. It was an – with the greatest of respect to your Honour, it was an understandable but irrelevant concern and it – it’s relevant to the matters on appeal.
HIS HONOUR:   So then if we go to paragraph 6, here there seems to be maybe three issues raised – maybe four; adequacy of reasons, so that goes back to 1 and 2; denial of natural justice, which I confess I don’t understand that seeing that everyone was legally represented. I don’t know what – the denial of natural justice there because I don’t have any particulars; and an over-abbreviated process. Again, I don’t know what that actually refers to, again, because everyone was legally represented. I didn’t understand the court curtailed any part of the hearing.
MR BELL:   There’s no – if it reads to your Honour as some implication that your Honour was overbearing or acted inappropriately in some sense then that’s wrong and that’s ‑ ‑ ‑
HIS HONOUR:   No, no, I’m ‑ ‑ ‑
MR BELL:   It shouldn’t be seen that way.
HIS HONOUR:   I’m just trying to understand it.
MR BELL:   It’s – it was a heavily abbreviated – I’m a little – not completely certain what was happening in the listing process. My understanding was – but your Honour will know best of anybody – but was that there had been some communications to relist the matter probably plausibly connected to arrangements for the report writer. But that ‑ ‑ ‑
MR HADDOCK:   Well, your Honour, I might assist my friend because what he’s saying to you is completely wrong. The matter was listed before you for determination of the interim hearing in relation to [Y]’s living arrangements and, tellingly, in relation to outstanding issues for property disclosure. That’s why it was listed. So if that assists my friend in the submission ‑ ‑ ‑
MR BELL:   Well, I’m sorry if I was not clear. I don’t mean why was the matter listed before your Honour in the hearing, but I had understood there was some communications where one or other party was seeking to relist – relist, if I wasn’t clear enough – relist the matter before your Honour and then your Honour indicated that it would be listed for judgment, and I think your Honour had ‑ ‑ ‑
HIS HONOUR:   Sorry.
MR BELL:   The ‑ ‑ ‑
HIS HONOUR:   I’m sorry, I’m – I think we need to move on. This is all getting even more into the peripheral, but in any event ‑ ‑ ‑
MR BELL:   Well, it’s only the – it would – it is relevant to the overall matrix that the report was imminent and one might have expected that your Honour – it seemed to be common ground that your Honour would be assisted by the report, and that’s only – they’ve got interviews in three weeks time. So ‑ ‑ ‑
HIS HONOUR:   So – well, in any event, subject to when we get to your ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ detailed submissions – and I’m sorry to be taking so long on this – but the unfairness, denial of natural justice, I don’t know what that refers to, but then a little further down:
Orders were unsupported by the pathway statutory considerations or reflecting the guidance of authority.
Apart from, I have to say in my own defence, except the High Court decision in Bondelmonte, so – which the facts are not that dissimilar to here. Child is overseas. High Court says it should be brought back. Problems in relation to meaningful relationship between the overseas child and the mother and the daughter here, so, guidance of authority, and nobody has addressed Bondelmonte in any of their submissions. So I’m just wondering – and then a little bit later, what I do is – “this was an unfortunate approach to the parties arrangements and their cultural heritage including – as cannot be doubted in contemporary multicultural Australia”. Like, what do I do with that.
MR BELL:   Your Honour has referring to it as an interesting arrangement and the terminology might suggest that your Honour thought, “Well, it’s inevitable. It’s all a bit interesting how it happened. The mother doesn’t want to go there and, perhaps correctly, doesn’t want to go there as to how it happened but, anyway, let’s just do it now”, and it’s our respectful submission that this needed, and was a proper case for, more analysis than that, and in the face of an upcoming report in a few weeks time, that that’s very unfortunate that such an important matter of evidence flagged by the court, encouraged by the court, sought by the parties, unquestionably of significance, was not able to be considered because of the way in which notice was given that it will be done now that the dates at hand. But that’s unfortunate and there are some comments about it being interesting and some that probably don’t reflect what your Honour might have had in mind, but one can’t say. And ‑ ‑ ‑
HIS HONOUR:   All right. Sorry, Mr Bell. Sorry.
MR BELL:   Yes.
HIS HONOUR:   But given the lateness of the hour ‑ ‑ ‑
MR BELL:   I’m sorry, your Honour. I – I’m trying to assist ‑ ‑ ‑
HIS HONOUR:   No, no.
MR BELL:   ‑ ‑ ‑ with what your Honour’s asking.
HIS HONOUR:   Why don’t we just press on with your submissions ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ and you can take that I’ve had the benefit of reading them.
MR BELL:   Thank you, your Honour.
HIS HONOUR:   So bearing in mind that there are others who ‑ ‑ ‑
MR BELL:   Yes.
HIS HONOUR:   ‑ ‑ ‑ have to speak as well, I would be ‑ ‑ ‑
MR BELL:   Your Honour, I won’t be unduly lengthy subject to any matters that arise with your Honour. Your Honour has seen the ‑ ‑ ‑
HIS HONOUR:   I will be trying very hard not to interrupt anymore.
MR BELL:   I’m sorry, your Honour.
HIS HONOUR:   I said I will be trying very hard not to interrupt anymore or at least I will try and be restrained at this late hour, as I say.
Procedural background & “pleading” issues

For the purposes of the interim hearing held on 11^th November 2021, the Father filed written submissions the day prior. As recorded in the judgment (at [10]), in pellucidly clear submissions, the Father noted that there were three issues [only] for the Court to determine, namely:
Issue in dispute
1.There are three substantive issues to be considered by the court in these interim proceedings”
a.whether orders should be made requiring the child, [Y] born … 2014 (“[Y]”) be moved from China to Australia;
b.the time the child [X] born … 2017 (“[X]”) spends with the Applicant father; and ,
c.progression of the property proceedings, including and financial disclosure by the Applicant.
Parenting relating to [Y]
2.In October 2016, [Y] (at the age of 2) moved to China to reside with his paternal grandparents. There is considerable disagreement about the circumstances of the move but it not in dispute that the initial move to China occurred by agreement of the both parents. Since this time, the paternal grandparents have been the day-to-day decision makers and financial providers for [Y]. The parties have had a limited role in [Y]’s upbringing. There have been no assertions by either party, that [Y] is not adequately cared for by the paternal grandparents or that their parenting abilities of are inadequate.
3.There is again considerable disagreement between the parents about the level of co-operation between the parents concerning [Y]’s arrangements. However, it is not in dispute that:
a.Both parents regularly speak to [Y] by way of telephone calls and/or video calls:
b.[Y] has travelled to Australia for time with his parents on at lease 2 occasions and his mother and [X] have travelled to China on 4 occasions between April 2017 and March 2020.
c.The ability of [Y] to travel to Australia, and for his parents and [X] to travel to China has stopped since the end of 2019 because of COVID 19.
4.[Y] has adapted to the Chinese culture, has a close relationship and support with his extended family in China and has a strong relationship with his paternal grandparents.
5.[Y] is reported to be excelling above his age group at school. As a result, [Y] was accepted into boarding school in September 2021 which is offered by his school he always has been attending. This is a normal progression for a child at this school in China.
6.The Applicant is concerned that [Y]’s immediate return to Australia will impact his social wellbeing and his education. He is concerned that [Y] will have learning difficulties due to the language barrier, will not receive the same standard of education he receives in China and will experience difficulties adjusting in circumstances where [Y] has spent majority of this life in China. There is also concern that about the effect of being removed from his paternal grandparents to whom he has the closest attachment of any adult.
7.There is no evidence that suggests any specific concerns for [Y] in China requiring any urgent relocation to Australia other than the understandable desire of the mother to see him. Certainly, there is nothing raised by the mother at the Child Dispute Conference dated 10 August 2021 (“CDC report”).
8.The Respondent alleges that [Y] was sent to China without her consent. The Respondent has remained supine in the face of the decision. The Applicant asserts it was a consensual decision.
9.On 12 May 2021, the Respondent attempted to unilaterally change [Y]’s school in China from the school he has attended to another Chinese school. This issue was raised with the Respondent in correspondence on 16 June 2021. The Applicant did not receive a response. The actions of the Respondent suggest that notwithstanding her pervious claims of being powerless to do anything she was perfectly willing to take her own actions concerning [Y] after separation. This strongly suggests she at worst acquiesced to [Y] residing in China.
Parenting relating to [X]
10.The Applicant asserts he historically has had a meaningful relationship with [X] throughout the relationship. Notwithstanding the recent efforts of the Respondent to frustrate the relationship when separated under one roof, the Applicant ensured to spend time with [X] when home from work and assisted the Respondent with the day-to-day care of [X].
11.Since June 2020, the Respondent has unilaterally ceased time with [X] or limited the Applicant’s interaction by:
a.Keeping [X] awake until 11:00pm watching videos on YouTube.
b.Interrupt the interaction between the Applicant and [X] by saying words to the effect of, “[X], let’s go watch YouTube” or “let’s go play a game”. She then takes [X] into her bedroom.
c.The Respondent would restrict [X] from coming near the Applicant.
d.Upon the Applicant’s return home from work, the Respondent would take [X] into her bedroom and close her door. She would not allow him to greet each other.
12.On occasions, the Applicant heard the Respondent tell [X], “Dad is dead” and “Dad is a monster.” [X] repeated these words to the Applicant.
13.In or around October 2020, the Applicant initiated negotiations with the Respondent for care arrangements for [X]. Mediation was unsuccessful. He obtained a section 60I certificate.
14.The Applicant asserts he is a victim of domestic violence perpetrated by the Respondent. There were several incidents that occurred during the relationship and post separation while the parties were residing under the same roof.
15.The Child Dispute Conference memo states that “the mother did not report any concerns regarding the arrangements for [X]’s time with the father”. Nor has she raised any historical concerns between the father and [Y]. To take a position of wanting both boys to only have 3 hours a week is quite extraordinary. The seeking of such limited time between the father and the children suggests a motive other than best interest of the children.
16.On 5 September 2021, the Respondent unilaterally ceased time between the Applicant and [X]. On 10 September 2021 the Applicant proposed make up time. On 24 September 2021, the Respondent declined the offer for makeup time and instead asserted “the child [X] is settling into a routine. Unfortunately, in the interests of routine, our client does not propose to provide make-up time”. On 30 September 2021, the Applicant again pressed for makeup time. On 15 October 2021, the Respondent eventually agreed for makeup time. By virtue of this, it is evident the Respondent is putting the routine of [X] ahead of building a relationship between [X] and the Applicant. There is no identifiable detriment to [X], if his time is increased with the Applicant.
17.The orders sought by the father in these interim proceedings are accordance with the recommendations of the Family Consultant but with a gradual increase over time.
18.The Respondent alleges that she “fears” that [X] will be sent to China to live with the paternal grandparents. The Respondent’s fears are unfounded in circumstances where the Respondent holds the passport for [X] and the Applicant has agreed for [X] to be placed on an Airport Watch list on 31 August 2021.
Issues relating to financial disclosure
19.Orders dated 5 October 2021 require the Applicant to produce documents as outlined in Orders 2 to 5. Production of the documents are in the hands of the Applicant’s accountant. It appears from the communication received from the accountant, that the requested document should be ready “At this stage, due to the lack of resourcing in terms of staffing and sickness, I reckon a good estimate will be end of November.”
20.The Applicant has 1% interest in the company known as [Rong Pty Ltd]. This is a company which has a history of insolvency with extensive director’s penalties. The liabilities of the company exceed its assets. An administrator was appointed on 1 November 2019. This information has already been relayed to the Respondent on 1 October 2021 by way of correspondence.
21.On 29 September 2021, the Respondent agreed to a joint valuer to value the business. The valuer has been selected.
On 10^th February 2022, the Court pronounced Orders and delivered reasons. As already noted, on 9^th March 2022, the Father filed an Appeal in relation to the Orders made. More particularly, the Father opposes the Orders that require his older son, Y (both 2014), who has lived with the paternal Grandparents in China for approximately the last 5 years, but who has returned to visit his parents and young brother, X (aged 5 years), a couple of times, to be returned to Australia by the end of March 2022.
In the first of his two Affidavits filed recently (respectively, 4^th and 10^th March 2022), the Father confirmed that, courtesy of funding from his parents, tickets had been purchased for Y’s return to Australia, with a scheduled landing on 29^th March 2022. The Father’s Affidavit of 4^th March 2022 also set out some discussions the Father had with Y about returning to Australia. While understandable, up to a point, as the arguments played out in Court, those discussions assumed a certain prominence and difficulty that is discussed below.
It is also important to note that interviews with an expert are scheduled with the parents and the children in early April. Further, contrary to what was mentioned by Counsel for the Father at the Stay Application hearing, at the interim hearing last November there was never any Application made by anyone (nor has there been since) that the Court should not make any interim Orders until after the expert Report had been completed and released. Perhaps this was because at the November hearing, the Court had before it a Child Dispute Memorandum from Ms K, dated 10^th August 2021, which was admitted into evidence as Exhibit A. Given that the Family Consultant noted (at par.25) the “problematic” parenting arrangements currently in place (meaning that Y was living in China separated from, among others, his brother X), and the usual benefit of siblings living together to enjoy “shared experiences”, it is very surprising that no one (but the Father most particularly) did not address this recommendation in the CDC Memorandum and the comments by the Family Consultant either in submissions, or otherwise, at any time.
In this regard, I note the following from the Transcript from the interim hearing last November where Counsel for the Father submitted as follows (emphasis added):[5]
So far as [Y] is concerned, your Honour, the memo in relation to [Y] does not make a recommendation specifically; it notes the matter is complex.
And, indeed, your Honour, I would make that submission as well. It is a complex matter with a number of things your Honour needs to take into account. The recommendation in the memo is appointment of an independent children’s lawyer – and we certainly would not oppose the appointment of an independent children’s lawyer – and, secondly, that the matter be considered in more detail in a family report. Your Honour, in my submission, a family report is essential in this matter because you’re not going to get any evidence as to how the current circumstances affect [Y] from either of the affidavits of these parties.
My client says he’s doing fine. The mother says that there is a number of issues about the consent or otherwise of him being there, and she expresses some concerns about the living circumstances that he is in. But, other than that, there’s a complete absence of evidence before the court as to how well he is doing in China, what the exact arrangements are with his care, his feelings about living in China. There’s simply no evidence about that, and, in my submission, the court would be greatly assisted by a family report and an urgent family report in relation to that.
[5] See T 7.
Simply to emphasise the point, both at the interim hearing, and at the Stay Application hearing, there was a complete absence of evidence, notably in relation to care arrangements for Y in China. So much was acknowledged in November 2021, there was nothing from Y’s “primary carers”, his Grandparents. They were referred to multiple times at the hearing last November. The lack of evidence then has not been remedied since. There remains nothing from Y’s primary carers in China, including about their well-being, about contingency plans for Y if anything were to happen to one or both of them; and nothing about, or from, Y’s boarding school; absolutely nothing, including nothing from the Father either by way of “information and belief.”
It was confirmed at the Stay Application hearing that the Grandparents were funding the Father’s litigation. But, while they fund it, otherwise they do not participate in, or provide any evidence for, the proceeding. The Father makes no Application for his parents to be joined. The Grandparents make no Application to be joined. The Grandparents do not file any Affidavit to apprise the Court of what is happening in Y’s life. But the Court is criticised for purportedly failing to consider Y’s welfare and the impact upon it of Court Orders for him to return to his family in Australia for the purpose of obtaining an expert Report. To state the obvious: it is impossible to consider evidence that is not provided, notably by those best placed to do so.
Counsel for the Father submitted at the interim hearing in November 2021 as follows:[6]
… And notwithstanding that, your Honour, it still comes back to you have no evidence at this stage as to how it will affect [Y] - - -
HIS HONOUR: No, I understand.
MR STAGG: - - - and, in my submission, that is the most significant thing that you need to consider.
[6] T 18.
The Family Report scheduled for early April will fill multiple lacunae in the evidence. The need for the best possible Report, it seemed to me in November 2021, and still seems to me in late March 2022, remains paramount. The best Report will come with the parties, and the two boys, present rather than virtually. This is especially so in the absence of any evidence from the Grandparents, other relatives in China, and from Y’s boarding school.
In my view, it is simply improper to criticise the Court for directing the Father to take steps to ensure that Y comes to Australia for the purposes of the preparation of an expert Report, in circumstances where the Father has provided not a jot of evidence, and his parents likewise, or the boarding school, to assist the Court to determine what Orders are in the children’s best interests.
As noted above, the Father filed a Stay Application on 10^th March 2022, thereby giving the Court 19 days to list that Application, hear it, and to deliver reasons and make Orders before Y was/is scheduled to return to his country of birth on 29^th March. That Application was heard late on the afternoon of 24^th March, concluding at just on 6pm. This was in the usual circumstances where (as noted during the hearing) in the week when the Application was filed, I had 14 matters for mention, 6 interim hearings, plus various Chambers listings; in the week of the hearing of the Stay, I had 9 matters for mention, 5 interim hearings, 2 final hearings, 2 judgment deliveries and 4 compliance hearings; and in the week when Y is due to return to Australia (the week commencing 27^th March 2022), I have listed 2 interlocutory hearings (one of them for more than half a day), a 3-day final hearing in the Fair Work jurisdiction of the Court, and 3 directions hearings.
Be all that as it may, and with genuine concern, bordering on embarrassment, and certainly a significant degree of discomfort, as already noted, the Father’s Stay Application, in writing and otherwise, was essentially incomprehensible. To say that the Grounds of Appeal were/are infelicitously drafted, respectfully, is a significant understatement. During the hearing, I endeavoured to find out what each specific ground contained or was intended to comprehend, at least in some simplified, refined or abbreviated form. Regrettably, I was not enlightened. Respectfully, nor could I be. More troubling was, as Counsel for the Mother observed, the completely imprecise, narrative-form Grounds of Appeal made the hearing for all, including the Court, procedurally unfair. It assisted the Court not a jot for Counsel to observe that it was often the case that at the hearing of an appeal, the final grounds argued before the Full Court were somewhat different to those filed. Whatever may or may not happen in the refinement of said Grounds, this Court can only deal with what is provided to it for the Applications and hearings listed. Generalities, vague and unparticularised complaints of the kind displayed in the current proceeding, assist no one, including the Court.
At one stage in the course of oral submissions, Counsel for the Father said (set out earlier in these reasons):
MR BELL:   But I think your Honour knows what ‑ ‑ ‑
HIS HONOUR:   Yes. Given ‑ ‑ ‑
MR BELL:   ‑ ‑ ‑ the point is.
Respectfully, it was and remains impossible, and inappropriate, to have to guess “what the point is” that the Court is supposedly meant to consider. It is no less inappropriate, and improper, for Counsel to suggest that the Court should know, without any details, what any particular point is that is being argued.
It is a standard principle of the conduct of litigation generally that each party be able to know clearly what case is being conducted against the other, including the bases for specific claims. The same, basal principle, applies equally to appeals. The authorities on such matters are almost legion. It is sufficient to note the High Court’s comments (Mason CJ and Gaudron J) in Banque Commerciale SA (en liq) v Akhil Holdings Ltd confirming that each party should have adequate notice of the case that will have to be met at the trial.[7] The joint judgment went on to note, in the same place, that proper process serves “to ensure the basic requirement of procedural fairness that a party should have the opportunity of meeting the case against him or her and, incidentally, to define the issues for decision” (emphasis added).
[7] Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287 (emphasis added): “The function of pleadings [and other process] is to state with sufficient clarity the case that must be met.”
Because general claims of lack of “procedural fairness” was a feature that featured in many of the Grounds of Appeal, it is as well to note the important observation by Gleeson CJ in Lam that “procedural fairness is a practical, not abstract, concept and is only designed to avoid injustice”.[8] The fundamental problem here is that not a single particular of what the procedural unfairness complained of was contained in any of the appeal documents.
[8] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37].
Doing the best that I can, even by the end of the hearing, I was little clearer about not only the Grounds of Appeal, and in turn, according to principle set out below, how I was to evaluate the prospects of success of the Appeal.
Put another way, it was impossible to elicit a simple, ground of appeal out of any of the 8 paragraphs (Annexure B to the Notice of Appeal), not least because each numbered Ground of Appeal contained many, overlapping but unspecified contentions. The only way to proceed here has been to set out those Grounds in full in their narrative style, as detailed above, which seem also to include submissions, general statements and assertions, and other complaints. That having been done earlier in these reasons, below I endeavour to decipher specific areas that appear to me to be grounds or even general themes of appeal that appear more regularly than others.

Lest it be thought that the Court was the only one having difficulty understanding much of what has gone on in the matter since the filing of the Appeal by the Father, and in addition to the ICL’s submissions already noted regarding her inability to understand the Grounds of Appeal, the following comments by Counsel for the Mother at the commencement of the hearing of the Stay Application speak for themselves. What follows are the first stages of Counsel’s submissions only:[9]
[9] See TS 24 – 27.
MR HADDOCK: Your Honour, I’m going to try to be as brief as possible and, unfortunately, I’m going to have to be somewhat blunt this afternoon, and I’m going to structure this as, first, I’m going to do some very brief responses to things my friend has said to your Honour. I will then address a number of things in the father’s submissions briefly, the ICL submissions briefly, and a number of things that flow from what we’ve said. I want to say this at the outset, your Honour. The arguments about, “Well, we should have had a family report. We should have waited or there should have been some other process”, it is unbelievable, in my submission, that that argument is made competently by – to your Honour by counsel when Full Court authority, without any argument – and in fact perhaps best put in paragraph 26 of Beaton & Beaton [2020] of the Full Court, in our submissions, dealt with precisely that argument and, in effect, the Full Court said, “Yes. You don’t get to make that sort of argument if it wasn’t raised in the primary proceedings in the interlocutory primary proceedings”.
So any ground of appeal that’s directed towards that must plainly fail on the face of authority. So quite why it is held out as the Olympic torch in this case of success is beyond me and, in my submission, by looking at paragraph 26 and 27, which was described as fatal to the grounds of appeal, it was exactly that issue. So if my friend’s appeal is going to morph into some sort of complaint about the incompetence of counsel for his client who didn’t raise that, that may morph, but he has got a difficulty in that as well. So that’s the first point I make in relation to – orally, and what goes with that is that perhaps, insofar as yearning for information, my client might have been yearning for the child to be returned to her, not the information because the court had the information in the CIC memo, which your Honour appropriately referenced in your reasons.
The first thing I say about what’s said orally. The second thing is it is incredibly disturbing to hear that we’re not going to engage with felicity with the what styled grounds of appeal because what flows from that is that the position appears to be, “I’m not going to tell my friend what my actual grounds of appeal are. So, procedurally fairness-wise, it’s some sort of ambush and I’m going to cloak them in some sort of strange hybrid of submission and ground of appeal”. That robs me of all procedural fairness in terms of understanding what’s put, which is I understand and apprehend – and why we’re grateful to your Honour – precisely why your Honour seeks a clarification as to their grounds of appeal today.
It’s one of the things that I will be saying to your Honour – I will be explaining – is that they are a nonsense at best. They conflate. It’s very difficult to understand what they mean. The difficulty of understanding is really an incredibly serious thing, (a) for the appeal court to understand it, and one of things that’s said to your Honour is all the – I’ve been given lots of advice about things I should concede, and I’m always grateful for advice, but we don’t concede these things. We don’t concede them because we clearly don’t concede them in our submissions and they’re just wrong, because one of the things I want to observe to your Honour at the outset is no application has been made in the appeal for expedition at all, and applications need to be made as an application for appeal form. That’s how they’re competently made.
The only reference anywhere to expedition at all, other than my friend’s written submissions, is one word “expedition” that appears in a notice of appeal in the orders sought of the appeal. So it’s completely disingenuous to come to this court and make any suggestion that there’s even an application on foot for expedition because there isn’t. It’s part of the very concerning, strange part of the notice of appeal where the orders sought also include seeking orders for a stay. Again, not appropriate in a notice of appeal. Completely wrong in a notice of appeal, and your Honour can be reassured some Sydney silk won’t be doing the appeal. I will be doing it. So to the extent that was ever going to be relevant to your Honour’s determination I give you that reassurance.
In terms of the submissions the father has made in written form, I say they’re not properly submissions. They’re really some sort of plea or invitation to make admissions, at best, in relation to the mother. That was plainly inappropriate. It isn’t appropriate, just as all the comments about ADR and things that may or may not be offered. Well, completely inappropriate and they don’t go to the issue of the stay application before your Honour. There’s no proper – and I just want to turn and emphasise very briefly there is no proper application for expedition in the appeal and, frankly, one hates to use a quote, your Honour, but Vince Lombardi once said, “You don’t do things right once in a while. You do them all the time”. That would be an apt quote to keep in mind when looking at this notice of appeal, the grounds of appeal, the orders that are sought and generally the way the matter is being conducted, which, in my submission, is haphazard at best by the father, including, of course – let’s not forget – that there has been no apology to your Honour this afternoon for the failure to comply with your Honour’s directions for the timeline of filing these written submissions because it wasn’t complied with by the father. In any event, it’s difficult to understand, your Honour, how they say their stay can be successful where they come to your Honour’s court with no proper evidence about when an appeal can be listed. That could have been in an affidavit.
It could have been the Eastern Appeals Registry has been contacted and asked to give some preliminary indication. It’s an important factor. Your Honour wasn’t assisted about that, and, beyond that, they chose not to put in to evidence before your Honour a transcript or anything to assist you in any way to determine the preliminary assessment of the strength of the appeal and it was incumbent upon them to do so because that’s where the onus falls. That’s where the onus falls. And in many ways it’s tragic that I have to make that submission because I should not be put in the position to make that submission, more importantly the court shouldn’t be put in that submission of the lack of assistance.
What your Honour said, a little bit of order, a little bit of method, perhaps an exercise of the little grey cells on occasion, would have assisted the court and may have gone some way to saying that this application was anything other than doomed to failure, and I will be saying to your Honour it was doomed to failure and it is doomed to failure. Your Honour would have a serious concern, in my submission, that any lawyer would have put their name to the notice of appeal or, indeed, the submissions that have been filed because many of them don’t make sense in the English language, setting aside the spelling errors in even the submissions that were filed yesterday, and the concern would be that it’s either a mere mouthpiece issue or this is a deliberate denial of procedural fairness in trying to understand the grounds of this appeal, because anyone who suggests that they are of assistance to the court to help – or the appeal court, rather, to help understand it, can I suggest that’s a bold submission to make, the way they’re crafted.
I’m a terrible one for the introduction of comma splices and I must admit I even helped – I sought some assistance from Dr Lesley, who of course is a doctor of English literature, to try to understand some of the grounds of appeal and neither of us could make head nor hair of it, which is why I understand your Honour’s inquiry. But the safeguard argument that’s made is perhaps the most concerning. Simply a nonsense, and in circumstances where they came to court, and they come to court now, because they had the opportunity to address this on the stay application. No evidence about [Y]’s living arrangements. No evidence about unilateral decisions to put him in boarding school. No evidence about his relationship with the grandparents. The grandparents aren’t on evidence. No evidence about [Y]’s visa.
Nothing whatsoever to assist the court and simply say to your Honour, “We should have some sort of stay and then I apprehend it’s some sort of stay for some short period until we may get a report”, and interestingly, of course, we all know that reports take time after interviews, and that wasn’t quite explained, but okay. We roll on. There’s simply no evidence about that. Now, how is your Honour meant to properly assess and entertain that application when no one brings the correct evidence. The answer is you can’t. You never were. It’s similar to the submissions of common sense which are not helpful and, in fact, there’s a decision of Elkaim J in the ACT Supreme Court where he says the thing about common sense is it’s not common and, more importantly, it’s not a legal concept, and certainly your Honour will know that there’s nothing in the – Aldridge & Keaton about common sense.
It’s about the law and it’s about the best interests of the children and the relevant considerations, and I say that’s appropriate and particularly concerning, in my submission, is the concept that the presumptions of the entitlement of my client to rely on the correctness of the decision, which is a very thorough decision. Let’s be clear, it goes through the relevant authorities, including Bondelmonte and which I will be taking your Honour to in relation to the ICLs submissions. Very clearly, the idea that – because the court no – made no findings there’s less weight on those presumptions. That argument is pure sophistry and it has not support and authority at all. It clearly is.
It might be fairly – have been properly and fairly said, “Look, that is one of the factors”, but it’s but one of a series of factors and your Honour should place the emphasis differently, and had that been the submission it would be a different kettle of fish, but that wasn’t the submission. Can I say to your Honour it’s very difficult to understand how someone goes to an appeal court alleging your Honour had bias in whatever form, which I now apprehend today is an apprehension of bias, and ask your Honour to determine the stay. But perhaps more tellingly, of course, that appeal ground we also know, as a matter of Full Court authority, is also doomed to failure because, of course, it’s not open to argue that in appeal where you didn’t raise it before the primary judge, and the Full Court has determined that...
Written submissions on behalf of the Father
The Father’s written submissions were filed on 23^rd March 2022; they were as follows:
1. The applicant father appealed Orders made on 10 February 2022 and sought a stay of relevant orders. The stay is opposed in blanket terms. Whatever terms or conditions she may seek blanket opposition is another thing. If this moderates and particular conditions etc sought instead the applicant seeks notice of same.
2. It is submitted the respondent should concede the appeal would be nugatory absent a stay. For completeness, the only alternative is to argue the father should engage in significant costly urgent litigation to move an appeal court to revisit this application. That is inconsistent with the common sense of the matter, the needs, interests and finances of the parties and the limited resources of this Court, appellate court and common sense of the situation. A concession to that general effect.
3. Without wishing to offend by trite observations well known to the Court Aldridge & Keaton (stay appeal) [2009] FAMCFC 106; 19 June 2009 held inter alia:
1.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] HCA 13; (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] hca 84; (1986) 161 clr 681; clemett & clemett [1980] famca 90; (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 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.
4. This Court expressly made no findings so presumptions of correctness carry limited significance Otherwise the criteria favour the application. Any onus is on the applicant is subject to a clear statement that there is no special or exceptional circumstance to be established.
5. The parties and Court recognise the report writing process will assist them and the court meet the paramountcy principle. To second-guess urgently was a significant outcome open to review. The authorities eschew unnecessary changes of circumstances. This feature favours the stay and should be conceded.
6. The changes the Orders would bring about are significant and sudden and do not align comfortable with the paramountcy principle except by pre-empting the trial; even then a trial is in the light of a family report and attendant safeguards or transition supports considered. The authorities identify the timeframe and arrangements are important and this is reflected in the fathers position (supra). In the meantime needs to be seen in the light of the specific case. The relevant time frame for an appeal is in context of consent to expedition.
7. It may be relevant in any appeal if the Respondent made the concessions sought. To avoid surprise it is respectfully noted the concessions above are formally sought.
Before proceeding, I have to observe that the comments in paragraphs 1 and 7 where the Father seeks some sort or type of “notice” regarding any “concessions”, and to avoid “surprise”, are of a piece with the Grounds of Appeal. Regrettably, these comments and references (if that is what they are) are completely incomprehensible. Their point of reference – anywhere – and the circumstances to which they apparently allude, are a complete mystery.
Written submissions on behalf of the Mother
The Mother’s written submissions were filed on 23^rd March 2022 and were as follows:
Background
1.This outline of submissions sets out in brief compass those matters raised by the Respondent to an application for a stay of Judge Neville's Orders of 10 February 2022.
The Principles Applying to the Stay Application & Submissions
2.Counsel does not propose to recite at length the relevant authorities. The particular authorities counsel relies on are Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, particularly [18], Friscioni and Friscioni [2009] FamCAFC 43, of particular relevance Nygh J’s reasons in Clemett and Clemett (1981) FLC 91-013, and Medlow & Medlow [2016] FamCAFC 34. The Respondent makes the submissions below.
3.The Applicant Father's affidavit is insufficient to determine the application he brings. The Applicant's evidence is devoid of any detail that would allow the case to be decided in his favour. The onus being on the Applicant, this evidence does not meet the required standard.
4.The Respondent is entitled to benefit from the decision and presume that it is correct.
5.The grant of a stay irreparably damages the Respondent. The matter had a hearing. The matter was determined. Counsel for the father was given opportunity after opportunity to put the father's case. The child is being separated from his sibling currently. There is no concept of fairness to either party, let alone the relevant children, that points towards the grant of a stay.
6.Against any proposition that a stay would render the appeal nugatory, one notes that nothing stops the Appeal Court from re-exercising a discretion to return the child [Y] to China if the appeal is successful.
7.The strength of the appeal on any proposed assessment is that it is, at best, weak. A fair reading of the reasons for decision demonstrates the flawed nature of the Applicant's assertions. The appeal grounds are incompetent to the extent they are capable of being understood. In particular: -
a.The appeal grounds demonstrate an absence of understanding of the most foundational principles of the grounds of appeal from discretionary decisions outlined in the authorities.
b.The appeal grounds confuse and conflate a range of available grounds of appeal, making them impossible to understand correctly. It reads like a mishmash 'tick a box' approach to the grounds available with conflation in nearly every ground and in particular: -
1.Ground 1 conflates 4 separate grounds of appeal and does not appear to understand Full Court Authority such as [129] of Sigley & Evor [2011] FamCAFC22, Cubbin & Cutler [2018] FamCAFC 84 at [13]; Pates & Pates [2018] FamCAFC 171 at [62], and Keehan & Keehan (No2) [2018] FamCAFC 139;
2.Ground 2 is a complaint about discretion. The difficulties with this are best expressed at [15] of Crouper & Mitchell [2014] FamCAFC 246;
3.Ground 3 appears to be a mistake of fact or failure to take into a material consideration ground. Examining the argument and reading the decision, it is not made out to the standard required in Storie v Storie (1945) 80 CLR 597 or De Winter & De Winter (1979) FLC 90-605. It also makes it clear that no one read Vakauta v Kelly (1989) 167 CLR568) or Genesalio & Genesalio [2020] FamCAFC 113;
4.Ground 4 appears to be an argument about bias which is, in reality, an argument about discretion. It misunderstands basic principles concerning findings in interlocutory proceedings.
5.Ground 6 does not make sense in the English language.
6.Ground 7 is weak, especially where it was not contested in submission by counsel for the father. The authorities preclude him from raising this point on appeal, in particular, Metwally v University of Wollongong (1985) 60 ALR 68; Beaton & Beaton [2020] FamCAFC 297; and
7.Ground 8 is not a proper ground of appeal and relies on speculation and inferences, which have logical difficulties.
8.The best interest of the children is compelling in this case. One cannot put it better than [34-35] of the decision. Permitting the continuation of the current situation is disruptive of the siblings' relationship.
Independent Children’s Lawyer’s written submissions

The Independent Children’s Lawyer’s written submissions were filed on 23^rd March 2022; they were as follows:
ISSUE FOR DETERMINATION
1.Whether the Court should stay Orders 1-10 and 16-18 made by Judge Neville on 10 February 2022.
APPLICABLE PRINCIPLES
1.The Independent Children’s Lawyer (‘ICL’) submits that the applicable principles in relation to whether a stay should be granted are set out in the matter of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 at paragraph 18.
2.The ICL was not appointed when the Interim Hearing was conducted by Judge Neville and has not yet been provided a copy of the transcript by the Appellant. Without being present for the Interim Hearing and not having the benefit of considering the transcript the grounds of appeal are confusing and difficult to understand. The ICL therefore at this stage is unable to make any assessment as to the strength of the appeal.
3.The ICL accepts that the Respondent is entitled to benefit from the decision and that the onus to establish a proper basis is on the applicant for the stay. However the ICL submits that there are other principles and considerations that need to be weighed in considering whether to issue a stay in this matter.
4.The best interests of the children is a significant consideration in whether to grant the stay. In this matter the child [Y] has been living in China since … 2016 and has been cared for by his paternal grandparents. While the ICL accepts that the best interests of [X] are also important and should be considered, the biggest impact and consequences of whether the stay is granted or not will be on the child [Y].
5.The Court must consider the desirability of limiting the frequency of any change in [Y]’s living situation. [Y] has been residing in China since … 2016, China is his primary place of residence, his primary attachment is likely to be his paternal grandparents and [Y] has commenced his schooling in China.
6.It is submitted that in an assessing what is in [Y]’s best interests, the Court must consider the benefits and desirability of maintaining the status quo. It is submitted that it is inappropriate and not in [Y]’s best interests for an approach to be taken that [Y] is returned to Australia, if the Appeal is then successful to potentially be returned to China and then depending on the outcome of the Final Hearing having different living arrangements.
7.The Court must weigh the risk that an appeal may be rendered nugatory if a stay is not granted. It is submitted that this principle, the desirability of reducing the chances of [Y] having multiple living arrangements and his best interests are the substantial factors that will lead the Court to grant the stay.
Outline of principle
I note the following from the Full Court’s decision in Aldrige & Keaton (Stay Appeal).[10] At [17] – [18], the Court said (emphasis added):
[10] 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.
Because this Court, and the Full Court on appeal, is dealing (or will be dealing) with a discretionary judgment, I remind myself of the oft-cited statement of principle by Stephen J in Gronow v Gronow, where his Honour said (emphasis added):[11]
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.
[11] Gronow v Gronow (1979) 144 CLR 513 at pp.519-520.
In the same case, Aickin J said (at pp.537-538) (Mason and Wilson JJ agreed at p.526) (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):[12]
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.
[12] 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)):[13]
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).
[13] Sigley v Evor (2011) 44 Fam LR 439.
Consideration & disposition
To assist in the following discussion and for ease of reference, it is as well to record again the three issues, as set out in the Father’s clear written submissions at the interim hearing, the Court was asked to determine:
a.        whether orders should be made requiring the child, [Y] born … 2014 (“[Y]”) be moved from China to Australia;
b.        the time the child [X] born … 2017 (“[X]”) spends with the Applicant father; and ,
c.        progression of the property proceedings, including and financial disclosure by the Applicant.
By way of observation only, I note that there is no reference to X in the Father’s Grounds of Appeal. What is rather curious about this is that it rather begs the question regarding the Father’s consideration and appreciation of the sibling relationship, a significant consideration under the legislative pathway of Part VII of the Act, notably s.60CC(3)(b) and (d). The Father seems strenuously to resist any attempt to have Y return to Australia even for the limited purpose of interviews for an expert Report. But in doing so, there is not a word about Y’s relationship with X, or with his Mother for that matter. The Father’s position also rather invites questioning, at some appropriate stage, including by the expert, what the Father’s relationship with Y actually is and why, apparently, he does not want him to return from China and spend some face-to-face time with him, and with X. At the interim hearing, the Father’s contention was that Y is best placed to live and be educated in China because it will be better for his future life and prospects. Such matters have yet to be explored. Likewise, the Father never addresses the primary consideration in s.60CC(2)(a) regarding Y having a meaningful relationship “with both of the child’s parents.” This is simply ignored by the Father.
Moving then to other matters, perhaps the first matter to note (although already mentioned earlier in these reasons) is that at the interim hearing on 11^th November 2021, both parties were represented by very experienced Counsel. In the Grounds of Appeal, the following may be noted on matters of inferred procedural issues complained of but which are never particularised:
(a)(Ground 3) “… His Honour should at the least [sic] circulated a draft order or invited the parties to draft same and which would take into account matters including but not limited to schooling, flight patterns [sic], health visa issues the safety of the child and the ability of the child to be free of undue pressure by the Mother …” Comment: in no authority is there any suggestion that, following an interim hearing and prior to judgment (which I assume is the import of the submission), the Court should provide the parties with a draft set of Orders and request comment on them. Nothing in the detailed instructions by the Full Court in Goode v Goode, or in any subsequent authority, suggests the novel course here proposed.[14] No authority was cited in support of it by the Father;
(b)(Ground 6): “The reasons are inadequate [previously noted in Grounds 1 & 5] and support inference of unfairness denial of procedural justice and over abbreviated process”. Again, leaving to one side (again) the stilted language, there is not a single detail, or authority, provided to support these claims. With both parties having experienced Counsel at the interim hearing, and neither Counsel having claimed at the time (or since) of any unfairness or denial of natural justice, in the absence of any particulars, it is completely impossible to work out what is being relied upon, or referred to, for this wide-ranging claim. It should never have been asserted. Further, the generalised claims of some sort of “denial of procedural justice” are equally unsupportable by fact and by authority. They should never have been made.
[14] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 at [81] and [82].
To suggest, or at least insinuate, that there was some sort of either procedural anomaly, or that the hearing was, in some unspecified and prejudicial way, attenuated, is an improper slur on the Court. The Transcript indicates that the hearing took place for approximately, or just under, 1½ hours. At the end of the hearing, Counsel for the Father stated: “… I have nothing further. Thank you.”[15] To suggest that the hearing was curtailed, and that there was now some astonishing, unparticularised claim of denial of natural justice, with no such complaints ever having been made either by the Father’s Counsel at the hearing, or by the Father’s lawyers subsequent to it, and only mentioned now in an oblique reference in the Grounds of Appeal, was improper in every respect.[16]
[15] T 33.
[16] The complaint about a “short hearing” was also made in Grounds 7 and 8. Short or long is not the issue. The Full Court in Goode at [82](d), the Full Court said (emphasis added): “… considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place).
There is a further generalised complaint, which might more accurately be described as another “theme” in the Grounds of Appeal because it is unspecified and unparticularised. This “theme” or generalised claim relates to the contentions that the Court did not take into proper account (a) the fact that Y is being looked after by his Grandparents, and (b) what impact it is likely to have on him by directing the Father to bring him back to his country of birth. Leaving to one side that Y is in boarding school, thereby obviating everybody, including the Grandparents, of any day to day responsibility for him, although noted earlier in these reasons, I recall the following in response.
First, as Counsel for the Father stated at the interim hearing, there is simply no evidence in relation to Y’s situation in China. There is nothing from the Grandparents; there is nothing from his boarding school; there is no evidence from the Father in any relevant detail regarding such things; the Grandparents have not filed any Affidavits at any time, notwithstanding confirmation at the Stay hearing that they continue to fund the litigation for the Father (and all else); and the Father has not sought to have them joined as a party. There is no relevant evidence regarding these important matters. How the Court can be criticised for failing to consider either (a) the impact upon Y arising from his return to his country of birth to spend time with his Mother, Father and sibling, X, and/or (b) the role of the Grandparents in the day to day care of Y, and otherwise, in the absence of any relevant evidence regarding such matters, and in turn the failure of the Father, his parents, and his lawyers to provide any such evidence, remains a mystery.
Lest there be any conjecture or doubt on this fundamental point regarding the lack of evidence before the Court, the following exchange with the Father’s Counsel during the hearing of the Stay Application is revelatory, because it confirms the impossible position in which the Court has been placed by the Father (together with his parents, and presumably his lawyers) in not filing proper (in fact, any) evidence, but then curiously if not audaciously, but improperly, complaining about the Court’s alleged failure to consider Y’ position, thus (emphasis added):[17]
[17] TS 32.
HIS HONOUR:   ‑ ‑ ‑ then my next question is am I right in assuming, therefore, that the grandparents are paying the father’s legal fees.
MR BELL:   I understand that has happened. Yes, your Honour. I don’t ‑ ‑ ‑
HIS HONOUR:   Right.
MR BELL:   ‑ ‑ ‑ know all those details.
HIS HONOUR:   So they’re able to pay the legal fees but I still get no evidence from them.
MR BELL:   I’m not quite sure what your Honour’s asking me. Is your Honour asking me about the report writing process. I understand it’s scheduled and I’m not aware of any ‑ ‑ ‑
HIS HONOUR:   Yes. No, no, no, I’m just ‑ ‑ ‑
MR BELL:   ‑ ‑ ‑ about fees.
HIS HONOUR:   I’m just asking that it is simply a statement of fact that there’s no evidence from the grandparents but they’re paying for the father’s portion of the report ‑ ‑ ‑
MR BELL:   I’m sorry, your Honour. Just – would your Honour just permit me a moment. No, your Honour is right. They didn’t give evidence.

Secondly, as also noted by Counsel for the Father at the interim hearing last November, the Court (and the parties) need an expert Report. That is precisely what was ordered in the reasons delivered on 10^th February 2022. The recommendations of the expert, based on the assessment of the parties (but without the benefit of anything from Y’s primary carers, the paternal Grandparents, for the purposes of s.60CC(3)(b)(ii) or otherwise), will very likely direct the Court’s attention to, and consideration of, the kinds of matters complained of here by the Father, such as the impact upon Y of being with his brother and his parents in Australia and not at boarding school in China, removed from his Grandparents and living with his Australian-based family. That Report will provide relevant independent evidence, in circumstances where (to be repetitive) there is precious little evidence relating to Y, and none by those best placed to provide it.
Another “theme”, noted in Grounds 4 and 5 is that the Court was “biased.” It remains unclear why the same Ground of bias is repeated. Again, absolutely no details of any sort are provided, and likewise there is no reference to any standard authority (e.g. Ebner v Official Trustee in Bankruptcy).[18] Again, no reference to any paragraph of the judgment under appeal. Again, no reference to the absence of any such complaint at the interim hearing; again, no reference to any such claim since the interim hearing. Again, an embarrassing claim made for the first time in the convoluted Grounds of Appeal, and therefore an improper one.
[18] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
The same comments apply to the related claim of “pre-determination”, which was joined to the contention regarding alleged bias. Should it need to be stated: a decision that adopts the submissions of one party in preference to those of the other party, is nothing more than the Court undertaking and fulfilling its appointed task – namely, to decide the issues put before it on the very limited evidence available. To make a decision does not, without rather more than is on offer here, constitute bias or pre-determination. It is simply a decision, following an interim hearing, where evidence was limited in certain crucial areas, and severely lacking in others, primarily from the Father’s side of the ledger. Plainly, he does not like the Court’s decision requiring Y to come back to Australia, even if only for the limited purpose of the preparation of an expert Report. As he is entitled to do, the Father seeks to appeal it. He does so without having furnished the Court with any of the significant, but thus far missing, evidence from his parents, either at the time of the interim hearing, or at any time since. He is the author of his own situation.
Other generalised claims were scattered through the Grounds of Appeal. Indeed “scatter” is the operative word, because the Grounds for which the Father contends are in effect, and in fact, akin to a “scatter-gun” approach in the hope – because there is no evidence to support, and much evidence to contradict, them from the transcript of the interim hearing (which the Father’s lawyer – apparently – alarmingly refused to provide to the recently arrived ICL) – that something will “stick”. Bald assertions, such as the Court taking into account unidentified and unspecified “irrelevant considerations” (Ground 8), or that the Father’s submissions were both incorporated into the reasons but somehow “excluded” (also Ground 8), remain unqualified contentions, unsupported by evidence, or authority, of any kind.
The further claims that (a) it was/is somehow inapt to bring Y home to be with his parents and younger brother, among other things, for expert assessment, but where he also finds himself in a family law dispute (Ground 4), and (b) that the Court should somehow, again without evidence, consider the disputed family configuration as being part of, or relevant to, both the “cultural heritage” of the parties, and also that the Court consider this family configuration in the context of “multicultural Australia”, remains quite a mystery. Such assertions without evidence are impossible to assess.
Further, children are, by virtue of the separation of their parents, necessarily embroiled every day in the Court system. It is not a novel feature of any family law matter. As such, it bespeaks almost desperation to raise it here as a consideration, other than to highlight – again – the lack of evidence from the Father and the paternal family about Y. Proper, independent light, will be shed by virtue of the expert Report. Moreover, it may be that, after the assessment and consideration of the Report that, upon further submissions, it may be agreed or the Court may Order that Y’s best interests are to live in boarding school in China, with intermittent contact with his Grandparents, obviously hoping (again in the absence of evidence) that they maintain their health and well-being because there is nothing in place at all regarding Y if anything were to happen to them. But until “we” all have the benefit of the expert Report, there is little that can be done.
Put rather more colloquially, “we” are all flying blind because (a) there is no evidence from the Grandparents; (b) no one has sought to join them as a party even though they are actively involved in the litigation, at least in their funding of the Father, the payment of Y’s school fees, and his other living expenses; and (c) there is no expert Report as yet, but it will arrive relatively soon.
Three final things to note in addition to what has already been stated.
First, in the recent decision in Bergman & Bergman, at [51] the Full Court said that, generally speaking, the obligation of a judge is to give reasons for the judgment (as reflected in the operative orders); not to explain every factual finding or the acceptance or rejection of every argument advanced by the parties.[19] Thus, in circumstances where no operative Orders were made in February 2022 regarding property issues, the tendentious references to property matters and non-disclosure were not, and are not, ad rem.
[19] Bergmann & Bergmann [2022] FedCFamC1A 38.The Full Court here referred to the well-known High Court decision in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62].
Likewise, where the immediate, crucial parenting issue as argued at the interim hearing in November 2021, and as set out in the Father’s written submissions for that hearing, related to a return of Y to Australia for the purposes of there being an expert Report prepared, and where the highest authority relating to such an issue involving an international context is the High Court decision in Bondelmonte (noted earlier in these reasons), but also where there is no relevant evidence put before the Court regarding the welfare and circumstances of Y from his Grandparents, the Court was completely hamstrung in evaluating this crucial issue as fully as it would have wished. As already stated multiple times, the circumstances confronting the Court were the direct result of the lack of evidence from the Father’s family in China. Properly advised, the Father could have, and should have, arranged for this evidence. He did not do so.
Secondly, in a slightly similar vein, it is important to recall the following comments from the Full Court in Chapa & Chapa, where Coleman, Murphy and Loughnan JJ said, at [9]:[20]
This Court has long recognised that, however unpalatable it might be for all concerned – including, crucially, the Court – the volume of cases in which early court intervention is necessary, requires proceedings for interim relief to be of a truncated nature. This Court said in C v C [1995] FamCA 156; (1996) FLC 92-651 at 82,674 – 82,676:
it is obvious that if the Court could not and did not place limits on the time taken in interlocutory proceedings and the mode by which they are conducted, its workload would mean that many other litigants would suffer serious injustice be reason of increased delays. Further, there must also be concern for litigants themselves in these circumstances, where lengthy hearings of interlocutory matters are both expensive and emotionally draining and do not lead to a final determination of the issues between them ...
This Court has finite resources and a limited number of judicial officers coupled with an ever-increasing workload. If it was required to embark upon lengthy examinations of interlocutory issues such as interim custody, important though they may be to the parties, this would inevitably lead to an inability to provide hearings of final determinations of issues of custody and property within a reasonable time. In addition, other persons requiring a determination of these and similar issues would be impossibly inconvenienced ...
[20] Chapa & Chapa [2013] FamCAFC 52.
Thirdly, as already noted in the primary judgment, but it remaining relevant as much today as it was in November 2021, and February 2022, it is well known that children’s views are malleable and liable to be influenced by adults within their immediate orbit, even if only inadvertently.[21] Thus the importance of Y being returned to his family in Australia for adequate review by an expert as soon as practicable.
[21] Bondelmonte v Bondelmonte (2017) 259 CLR 662 at [36]–[41].
Conclusion
If it be the case that the expert recommends that it is in Y’s best interest to remain living in China, subject to other evidence and submissions, it may be the case that the Court will confirm that arrangement. However, at the moment, for example, there are no Orders in place regarding parental responsibility regarding Y; it would be impractical, and much else, to do so. There would be no point in making such an Order for either, or both, parents, because he is out of the jurisdiction and they have, essentially, no say or responsibility for him – subject to the Father’s “influence” with his parents.
Any concern the child may have about a “visit” to Australia to spend time with his parents and brother would likely have been assuaged by it being reasonably treated as a “holiday”, which it would very likely be. However, as the Father deposed in his 4^th March 2022 Affidavit, he told Y that there was some likelihood that it would be a more permanent stay with his family. At one level, this may be perceived as a reasonable and understandable discussion. However, given how fraught the issue of Y’s residence is – historically and currently, as acknowledged by the Father’s Counsel at the interim hearing – the Father’s discussion with Y, to a significant degree, clearly placed the child (and the Father) in a very delicate and potentially distressed position. Indeed, the Father’s actions may well have compromised the whole situation about Y returning to see his family in Australia and to see the expert (subject to Covid and other insidious interventions). In such delicate circumstances, most regrettably, the Father’s actions may have potentially compromised matters.
These comments should be taken to be the Court’s consideration of whether refusal to grant a stay would render the appeal nugatory. A visit (of any kind – short or long, and subject to further Order of the Court) to his family in Australia is by far the most appropriate course. Any successful appeal would be tempered by (a) simply returning Y to the care of the boarding school and the distant or virtual embrace (like that of his parents) of his paternal Grandparents, and (b) the singular benefit of having a better expert Report.
These same comments should also be taken as the Court’s consideration of the frequency of change to Y’s residence. A holiday is not usually regarded as a change in residence. However, the Court is still required to consider as a significant matter the best interests of the children, not just Y’s interests. Keeping Y so far removed from his family in Australia, including his younger brother X, is a very significant matter to weigh. The Father’s Grounds of Appeal and his submissions, in my view, gave scant and inappropriate attention to this relationship. They were similarly rudimentary if not dismissive of Y’s relationship with both of his parents.
I have already canvassed at length the immense impediments to the Court in properly assessing the merit(s) of the Father’s appeal and the prospects of success. The conduct of the Father’s case in relation to the Stay and the Grounds of Appeal were and are completely antithetical to such a process. Inference, innuendo, and casual slights, without evidence, or any relevant reference to authority, and without even passing reference to any specific paragraphs of the principal judgment, were inappropriate and made the Court’s task, as earlier noted, almost impossible.
The issue of the Court’s exercise of discretion also permeated most of the Father’s Grounds of Appeal. It would be otiose to repeat the authorities and outline of principle set out earlier in these reasons regarding this aspect. It would be otiose also to note, again, the remarkably limited issues the Father confirmed at the interim hearing last November which he besought the Court to determine. The Grounds of Appeal stray far and wide, astonishingly beyond the narrow issues the Father articulated in November. As noted many times already, the Father’s Grounds of Appeal and his Application for a Stay of the February 2022 Orders, were so diffuse, imprecise and lacking in evidentiary support, perhaps most notably the complete absence of any evidence from the paternal Grandparents, that it was, and is, impossible for the Court (a) properly to evaluate the Grounds of Appeal, and (b) to do anything other than to refuse the Application. In my view, a stay of the Orders made in February 2022 is not in the best interests of either or both children.
Finally, should it need to be noted, accepting that no one ran it as a formal argument, the failure by the Father to provide evidence from his parents regarding Y’s situation and circumstances in any relevant respect, could entitle the Court to draw relevant inferences that their evidence would not assist the Father’s case, pursuant to the operation of principle from Jones v Dunkel. [22] Because it was not argued, I make no other comment in this regard, except to record that this was another, perhaps bordering on glaring, omission or problem in the Father’s case.
[22] Jones v Dunkel (1959) 101 CLR 298.
For the reasons given, as blunt as they have necessarily and most unfortunately been, the Father’s Stay Application must be refused and dismissed. Costs will be reserved, including any Application for indemnity costs.
Postscript
These reasons were substantially in final form, but not sufficiently so for publication at the time, when Orders were pronounced on 29^th March 2022. On that occasion, in answer to a question from the Bench, the Father’s lawyer advised that Y would not now be coming to Australia due to certain Covid restrictions in China. Y is now, so the Court was informed, currently residing with his Grandparents. Interviews had already been arranged with the expert who is to prepare the Report. It appears that some or all of these interviews are now to be conducted “virtually”. As such, the litigious fracas over the Stay Application, and in my view, also in relation to the Appeal, are now essentially rendered utterly otiose precisely because, at least in the short term, the principal issue in dispute – the return of Y from China for the purposes of the Report and more generally to be able to assess more accurately what Orders are in the best interests of both children, including the statutory entitlement of Y and X to have a meaningful relationship with both parents – is now pre-empted if not completely thwarted by the Covid-related circumstances and their effects upon Y and his inability to travel. Indeed, had the Court known of these circumstances earlier, a much quicker hearing would almost certainly have taken place. Presumably wiser heads would have hopefully prevailed and an alternative, less costly, course would have been taken. Because of these late-breaking events, it is not the refusal of the Stay Application that may make the Appeal nugatory, which for the reasons given in the Court’s view it would not, but rather Y’s continuing residence in China for some unknown period that makes it so. In my view, why any appeal would now be prosecuted is quite unfathomable. What might be achieved by it in the current circumstances cannot be easily deduced. The parties, and the Court, will have a Report. Whether the other missing pieces of the evidentiary puzzle will ever be provided remains to be seen.
There have been even more recent developments, which have yet to be determined. On 1^st April 2022, the Mother filed an Application in a Proceeding by which she seeks Orders effectively for enforcement of the Orders previously made regarding Y returning to Australia. The Mother now contends that the information provided to the Court by the Father through his legal advisers was erroneous and that Y is not in a Covid-19 related restricted area of China. She contends further that there continue to be regular flights from China. Orders have been made in Chambers, among other things, for the Father to file a Response within 7 days and for the matter to be re-listed on Wednesday 13^th April to deal with the Mother’s urgent Application. I understand that, whatever the outcome of the Mother’s Application, the virtual interviews for the expert Report will have already taken place. Clearly, the history of the matter in recent times suggests that, unfortunately, there is likely to be more, not less, litigation. And simply as an observation, one party does not have to worry about legal fees because of family funding.

I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 5 April 2022

File number(s):	CAC 958 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	29 March 2022
Catchwords:	FAMILY LAW – Parenting and property Applications – Stay application in relation to interim parenting Orders of 10 February 2022 – extremely poorly prepared Application made it impossible to determine what the grounds of appeal are – complete lack of evidence and complete poverty in the minimal authority cited – Application refused with all costs reserved potentially on an indemnity basis.
Legislation:	Family Law Act 1975 (Cth) s 60CC
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 Banque Commerciale SA (en liq) v Akhil Holdings Ltd (1990) 169 CLR 279 Bergmann & Bergmann [2022] FedCFamC1A 38 Bondelmonte v Bondelmonte (2017) CLR 662 CDJ v VAJ (1998) 197 CLR 172 Chapa & Chapa [2013] FamCAFC 52 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Goode v Goode (2006) 206 FLR 2021; (2007) 36 Fam LR 422 Gronow & Gronow (1979) 144 CLR 513 Jennings Construction Ltd v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681 Jones v Dunkel (1959) 101 CLR 298 K & B (2006) FLC 93-288 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 Sigley v Evor (2011) 44 Fam LR 439 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 2 Family Law
Number of paragraphs:	86
Date of hearing:	24 March 2022
Place:	Canberra
Counsel for Applicant:	Mr R Bell
Solicitor for Applicant:	Mazengarb Family Lawyers
Counsel for Respondent:	Mr J Haddock
Solicitor for Respondent:	Mark Hanna Lawyers
Solicitor for Independent Children’s Lawyer:	Legal Aid ACT

CAC 958 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR RONG Applicant
AND:	MS HUAN Respondent
LEGAL AID ACT Independent Children’s Lawyer

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	29 MARCH 2022