FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Whinery & Whinery [2025] FedCFamC1A 61
Appeal from: Whinery & Whinery [2024] FCWAM 226 Appeal number: NAA 15 of 2025 File number: 2245 of 2022 Judgment of: AUSTIN J Date of judgment: 9 April 2025 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the father appealed from all final parenting and property orders – Where his appeal was deemed abandoned due to his failure to file the transcript on time – Where the father asserted the delay was modest – Where the father admitted the entirety of the transcript had still not been filed – Where the appeal appears to have no merit – Where the father could not show some miscarriage of justice ostensibly resulted from his allegedly incompetent legal representation at trial – Where there was nothing unusual about the expert witnesses altering their opinion during cross-examination when confronted with new factual evidence – Where simple dissatisfaction with add-back findings is not a competent ground of appeal – Where the Magistrate acknowledged how add-backs were the exception rather than the rule – Where the father did not seek any adjournment of the trial on account of the alleged late financial disclosure by the mother and he suffered no consequential prejudice – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, XIB
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
Cases cited: Allan and Ors & Allan and Ors (2014) FLC 93-606; [2014] FamCAFC 162
Bligh & Trott [2023] FedCFamC1A 95
D’Orta-Ekenaike v Victorian Legal Aid (2005) 223 CLR 1; [2005] HCA 12
Farrington & Belkis [2024] FedCFamC1A 133
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
OP & TP & Anor (2002) 30 Fam LR 281; [2002] FamCA 1155
Number of paragraphs: 60 Date of hearing: 9 April 2025 Place: Perth The Applicant: Litigant in person The Respondent: Litigant in person Counsel for the Independent Children’s Lawyer: Ms Parkinson (direct brief) ORDERS
NAA 15 of 2025
2245 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR WHINERY
Applicant
AND: MS WHINERY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
9 APRIL 2025
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 22 March 2025 is dismissed.
2.The Response to an Application in an Appeal filed on 31 March 2025 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors…
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- Whinery & Whinery [2025] FedCFamC1A 61
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- [2025] FedCFamC1A 61
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CaseChat Overview and Summary
The matter before the Court was an application by the father, Mr Whinery, to reinstate his appeal against final parenting and property orders made by the Magistrates Court of Western Australia. The appeal was deemed abandoned due to the father's failure to file the transcript on time. The legal issues before the Court were whether the delay in filing the transcript was justified and whether the appeal had any merit. The Court found that the delay was not modest and that the appeal lacked merit. The father had not demonstrated that some miscarriage of justice resulted from his allegedly incompetent legal representation at trial, nor had he shown that there was anything unusual about the expert witnesses altering their opinion during cross-examination when confronted with new factual evidence. The Court also found that simple dissatisfaction with the add-back findings was not a competent ground of appeal. The Court held that the appeal had no reasonable prospect of success and dismissed the application to reinstate the appeal. The Court further held that the father did not seek any adjournment of the trial on account of the alleged late financial disclosure by the mother and he suffered no consequential prejudice.
The Court dismissed the application to reinstate the appeal and noted that the appeal appeared to have no merit. The Court found that the father could not show some miscarriage of justice ostensibly resulted from his allegedly incompetent legal representation at trial. The Court also found that there was nothing unusual about the expert witnesses altering their opinion during cross-examination when confronted with new factual evidence. The Court held that simple dissatisfaction with the add-back findings was not a competent ground of appeal. The Court found that the appeal had no reasonable prospect of success and dismissed the application to reinstate the appeal. The Court further held that the father did not seek any adjournment of the trial on account of the alleged late financial disclosure by the mother and he suffered no consequential prejudice.
The Court dismissed the application to reinstate the appeal and noted that the appeal appeared to have no merit. The Court found that the father could not show some miscarriage of justice ostensibly resulted from his allegedly incompetent legal representation at trial. The Court also found that there was nothing unusual about the expert witnesses altering their opinion during cross-examination when confronted with new factual evidence. The Court held that simple dissatisfaction with the add-back findings was not a competent ground of appeal. The Court found that the appeal had no reasonable prospect of success and dismissed the application to reinstate the appeal. The Court further held that the father did not seek any adjournment of the trial on account of the alleged late financial disclosure by the mother and he suffered no consequential prejudice.
Orders
Orders of the court
NAA 15 of 2025
2245 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
MR WHINERY
Applicant
AND:
MS WHINERY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
9 APRIL 2025
THE COURT ORDERS THAT:
1. The Application in an Appeal filed on 22 March 2025 is dismissed.
2. The Response to an Application in an Appeal filed on 31 March 2025 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Background
Background to the litigation
For the reasons which follow, the re-instatement application is dismissed.BACKGROUND The parties married in 2006 and separated in 2022. Their children are now aged between nine and five years. Whilst the parties lived together, the mother was the children’s primary carer (at [12]). She was forced to vacate the former family home in March 2022, leaving the children in the father’s care, after being served with an interim family violence order (at [13] and [19]–[20]). Almost immediately after the mother was ejected from the family home, she commenced proceedings in the Family Court of Western Australia seeking both parenting and financial relief under the Act (at [21]). For some time after those proceedings were commenced, the parties remained engaged in parallel criminal proceedings and allied reciprocal family violence applications. Eventually, the criminal charges prosecuted against the mother were dismissed, the interim family violence orders made against her were dismissed, family violence orders were instead made to protect her from the father, and adverse findings were made against the father of his “coercive control” of the mother (at [23]–[25] and [72]–[73]). While the parallel proceedings were still pending, interim parenting orders were made in March 2022 for the children to spend supervised time with the mother. Then, in August 2022, more interim orders were made providing for the children to instead live with the parties in weekly rotations (at [22]). Both parties made allegations against the other of deficient parenting to the State child welfare agency, which allegations were eventually not substantiated, though the agency concluded the parental conflict posed a risk of emotional harm to the children (at [26]–[27]). The trial in the Magistrates Court of Western Australia commenced in August 2024 and concluded in September 2024, taking 15 days, after which judgment was reserved. However, at the conclusion of the trial, pending judgment being later delivered, the magistrate made more interim orders suspending the earlier orders requiring the children to live for an equal amount of time with the father (at [5]). Judgment was pronounced on 18 December 2024. In respect of the parenting dispute, the magistrate made final orders for the children to live with the mother, who would have sole decision-making responsibility for them, and for them to spend only supervised time with the father. Such orders followed upon findings of the father’s commission of family violence towards the mother (at [96]–[98]), his intentional and malicious manipulation of the children to alienate them from her (at [125]–[128]), the need to remove the children from the parental conflict (at [149]), and the father’s lack of insight into the children’s needs (at [170]). In respect of the financial dispute, the parties’ assets and superannuation interests were divided in shares of 60 per cent to the mother and 40 per cent to the father, which decision was implemented by orders splitting the father’s superannuation interest to increase the mother’s superannuation, transferring to the mother some money held in a joint account, and otherwise letting the parties’ retain their personal chattels.
Evidence
Evidence Before The Court
The single expert and the family therapist were cross-examined and, in respect of their evidence, the magistrate said this in the reasons for judgment:34.Both [the family therapist] and [the single expert] gave their evidence in a clear and straight forward manner. I found them to be impressive witnesses.35.During the course of the trial, [the family therapist] and [the single expert] were provided additional information in the form of video and audio recordings; and with the consent of the parties and the ICL, they were requested to confer about their opinions. [The single expert] provided updated evidence in court which detailed the opinions of herself and [the family therapist].36.The updated evidence provided by [the single expert] was given with a more holistic view of the evidence. As such, I intend to place greater weight on the opinions of [the single expert] and [the family therapist] proffered during the trial, rather than those contained in their reports.(Emphasis added) There was nothing unusual about the expert witnesses altering their opinion evidence during cross-examination when permissibly confronted with new factual evidence. Expert opinion evidence must always have a proven factual premise, otherwise it is worthless. Nor was there anything unusual about the magistrate accepting their altered opinion evidence. The parenting appeal has no reasonable prospect of success (s 46(2) and s 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)).The property appeal Ground 1 is merely a statement by the father that he wishes to challenge certain findings made by the magistrate in relation to some assets notionally added-back to the balance sheet and the values attributed to some assets. The only reason advanced for the father’s wish to revise the findings made about the identity and value of the parties’ assets is that, in retrospect, he is disappointed by his lawyer’s forensic performance. Again, such disappointment is not a proper basis from which to challenge the findings which led to the parties’ assets being identified and valued at $465,247.08 (at [292]). The father does not identify any error made by the magistrate in that process. This ground and the submissions made in support of it amount to no more than a request that this appeal court instead accept the father’s original arguments and substitute its view for that of the magistrate, which is never a satisfactory basis upon which to determine an appeal from a discretionary judgment (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 48; Norbis v Norbis (1986) 161 CLR 513 at 539–540; Gronow v Gronow (1979) 144 CLR 513 at 519–520). Ground 4 is an extension of Ground 1, as it also amounts to a complaint about the assets notionally added-back to the balance sheet and the value attributed to the asset pool. First, dealing with the valuation evidence, the parties agreed on the value of many assets, liabilities and superannuation interests (at [235]). The parties jointly tendered a schedule of assets, liabilities and superannuation setting out the ambit of their dispute over the valuation of such assets and liabilities. The comparison of the exhibit with the magistrate’s eventual findings reveals:(a)the parties’ respective household chattels were excluded from the balance sheet;(b)a loan allegedly owed by the mother to a third party was taken into account as being her liability in the sum of $61,000 (at [276]–[279]);(c)the father’s alleged proprietary interest in a corporation, valued at $49,850 by the mother, was excluded from the balance sheet, just as the father argued should happen;(d)the father’s watch collection was included as his asset and was valued at $6,925 (at [246], [255]–[256], [260]–[262] and [292]);(e)two bank accounts allegedly owned by the father were omitted as assets for lack of evidence (at [317]–[318]); and(f)loans allegedly owed by the father to a third party were omitted as genuine liabilities (at [280]–[291]).
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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