Whinery & Whinery [2025] FedCFamC1A 61 (9 April 2025)

IT IS NOTED that publication of this judgment by this Court under the pseudonym Whinery & Whinery has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This is an application to re-instate an abandoned appeal, brought by the father from orders made on 18 December 2024 by a magistrate of the Magistrates Court of Western Australia to finalise causes of action between the parties relating to both their children and their property, respectively under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) ("the Act").
2. For the reasons which follow, the re-instatement application is dismissed.

1. The parties married in 2006 and separated in 2022.
2. Their children are now aged between nine and five years.
3. 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]).
4. 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]).
5. 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]).
6. 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]).
7. 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]).
8. Judgment was pronounced on 18 December 2024.
9. 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]).
10. 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.
11. The father appealed from all orders on 7 January 2025.
12. On 13 February 2025, the appeal registrar listed the appeal for hearing on 9 April 2025 and made procedural directions to ensure the appeal was ready for hearing on that date. Such procedural directions included an order requiring the father to file the electronic transcript of the trial by 6 March 2025.
13. The father encountered difficulty procuring the electronic transcript in a timely way and so, on his application and with the mother's consent, more procedural orders were made on 11 March 2025 extending the time for him to file only designated portions of the electronic transcript until 19 March 2025. The father failed to file all the designated transcript by that date and so, by reason of r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the appeal was deemed abandoned.
14. On 22 March 2025, the father filed an Application in an Appeal seeking re-instatement of the appeal, supported by his affidavit filed on the same date. The mother resisted his application by a Response to an Application in an Appeal she filed on 31 March 2025, supported by her affidavit filed on the same date.

1. In Allan and Ors & Allan and Ors [2014] FamCAFC 162; (2014) FLC 93-606, the Full Court said this about the legal principles which govern the disposition of applications to re-instate abandoned appeals:
   1. The discretion to re-instate an abandoned appeal is not exercised in an unstructured or unprincipled way, but rather in accordance with the established legal principles set out within Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480 (see Haykal & Krawiec & Anor [2014] FamCAFC 110 at [31], [40]-[46]; Bemert & Swallow (2010) FLC 93-441 at [128]-[131]). As was made plain in Gallo v Dawson, the discretion may only be exercised in favour of the applicant upon proof that strict compliance with the Rules will "work an injustice upon the applicant".
2. As was also observed in Farrington & Belkis [2024] FedCFamC1A 133:
   1. When an application is made for an extension of time within which to appeal, the merit of the intended appeal is pivotal. However, in cases like the present, where the default sought to be remedied instead relates to a failure to meet a time limit within a properly commenced appeal, the merit of the appeal is not the paramount consideration (Jackamarra v Krakouer (1998) 195 CLR 516 at [4], [7], [9], [33], [66] and [73]).
   2. Nevertheless, the ostensible merit of the appeal remains a material consideration because an applicant seeking the re-instatement of the appeal will not genuinely suffer any injustice if refused permission to do so as an unmeritorious appeal, if re-instated, is liable to then be summarily dismissed for the lack of any reasonable prospect of success (ss 46(2) and 46(3) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (" the FCFCA Act")).
3. Those principles are applied in this instance.

1. The father asserted the outstanding portion of the transcript was filed one day late on 20 March 2025, so his default was quite modest. However, that proved not to be so. He admitted that, in breach of Order 3(b) made on 11 March 2025, the whole of transcript for 23 August 2024 had still not been filed.
2. The mother contended the father has already once been given an extension of two weeks within which to file the transcript and her consent to the last extension was given in expectation he would comply with the new orders, but he still has not.
3. Re-instatement of the appeal would necessarily entail further delay because the appeal hearing would have to be re-listed and the mother would then bear the inconvenience, if not expense, of having to prepare a Summary of Argument to resist the appeal.
4. In isolation, the father's breach of the procedural orders could be rectified quickly and would probably warrant the re-instatement of the appeal, but that factor cannot be considered in isolation. An important consideration is that the appeal appears to have no merit at all and so forcing the mother to incur more delay, if not expense, before it is determined is unreasonably prejudicial to her.
5. To explain the apparent lack of merit in the appeal it is necessary to advert to the grounds of appeal and the Summary of Argument filed by the father on 6 March 2025, before the appeal was deemed abandoned.
6. The Notice of Appeal filed on 10 January 2025 comprises five grounds against the parenting orders and four grounds against the financial orders. The grounds are pleaded over two type-written pages, so they are not reproduced here in the interests of brevity.

1. Ground 1 is not a competent ground of appeal. It simply states the State legal aid agency declined to assist the father prepare his appeal. That may be so, but it makes no difference.
2. Grounds 2 and 3 are complaints about either the incompetence or the wilful misconduct of the father's lawyer and the Independent Children's Lawyer ("the ICL").
3. The father's attempt to blame other participants for the appealed decision is evocative of these comments made by the High Court of Australia in D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12; (2005) 223 CLR 1:
   1. Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected.
   2. This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the sixteenth and seventeenth centuries.
   3. From as early as the sixteenth century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps...

1. Not only does no legal suit lie against the other parties or the lawyers to remedy the father's dissatisfaction with the result, but his bare complaints against them are not valid grounds of appeal to vitiate the judgment either.
2. The father's complaints about his own lawyer's incompetence cannot sustain the appeal unless he is able to show some miscarriage of justice thereby resulted (TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124; OP & TP & Anor [2002] FamCA 1155; (2002) 30 Fam LR 281; Bligh & Trott [2023] FedCFamC1A 95 at [12]). No miscarriage is shown by simply alleging his lawyer's incompetence.
3. The complaints articulated in the Notice of Appeal, which it is unnecessary to repeat, do not establish any miscarriage of justice. They are simply a list of the things the father believes the lawyer either should or should not have done. But given the father is self-represented, he is probably unaware of his former lawyer's ethical obligation to conduct the litigation responsibly and not just unconditionally follow his instructions. It is noteworthy the father did not terminate his lawyer's retainer during the 15 days of trial due to any dissatisfaction with his performance, which inaction then tends to imply that his current dissatisfaction with the way in which he was represented is confected as a way to try and enhance the appeal.
4. Nor are the father's complaints against the ICL of "unprofessional conduct" valid grounds of appeal which lie from a discretionary judgment. The father may genuinely believe the ICL was biased against him, but the inherent function of the ICL is to form an independent view about the suite of orders needed to serve the children's best interests. That the ICL happened to form a different view from the father and made forensic decisions with which he disagreed is neither surprising nor evidence of partiality.
5. Ground 4 is a complaint of factual error by the magistrate when making the interim orders at the close of the trial on 18 September 2024. The ground is misconceived because this is not an appeal from those interim orders. Rather, this is only an appeal from the final orders made on 18 December 2024.
6. Ground 5 is a complaint of how both the single expert and the family therapist were misinformed about certain facts and, consequently, the tenor of their evidence then altered. This is not a competent ground of appeal either but, in any event, the grievance is capable of an easy answer.
7. 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:
   1. 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.
   2. 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].
   3. 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.

1. 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.
2. 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")).

1. 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.
2. 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]).
3. 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] HCA 17; (1986) 161 CLR 513 at 539-540; Gronow v Gronow (1979) 144 CLR 513 at 519-520).
4. 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.
5. 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]).

1. The father failed to explain, let alone establish, an arguable case as to how any of those findings was not open on the evidence.
2. Secondly, dealing with disputed add-backs, the primary judge notionally added-back amounts against both parties (at [291]-[292]), being:

(a) the mother's car at $16,000, which the father now says in the appeal should have been included at the higher value of $31,000;

(b) the father's car at $36,800;

(c) the father's cryptocurrency at $28,000;

(d) the father's bed at $5,850; and

(e) the father's insurance payout of $124,300 (after deduction of $36,800 for the loan owed by the father in respect of his car).

1. Correctly, the magistrate acknowledged how add-backs were the exception rather than the rule (at [237]). The value of the mother's car was added-back against her because she disposed of it at much less than market value (at [264]-[266]). There was no evidence to establish the higher market value of the car alleged by the father (at [267]).
2. It was uncontentious that the father transferred assets to a corporation controlled by his father for no consideration. Those assets were his car worth $36,800 and his bed worth $5,850. He also possessed watches he alleged were purchased for him by the corporation. The magistrate found those assets were most probably the father's and he improperly tried to keep them out of the mother's reach in the financial cause (at [246], [249]-[251], [254]-[256] and [322]).
3. It was also uncontentious the father purchased $31,225 worth of cryptocurrency (at [258]). He claimed he gave most of it away and spent only a small proportion on watches, but his evidence was not accepted (at [260]-[263]). The proportion he says was given away was added-back.
4. Lastly, the father received an insurance payout of $124,300, which he gave to his father to supposedly repay loans (at [281] and [290]). The magistrate did not accept the payment was genuinely in satisfaction of loans, other than in respect of a car, and therefore added-back the insurance payout but took the car loan into account as a liability.
5. The father failed to explain how the add-back findings of the magistrate were not available on the evidence. He just disagreed with the findings, but simple dissatisfaction with the findings is not a competent ground of appeal.
6. The father's overarching complaint that "more money has been awarded to the [mother] than actually exists" is simply untrue. The wife received the entire credit balance of a joint bank account (Order 28) and the father was ordered to pay her an additional $580 (Order 30). The base amount of $81,233 was split from the father's superannuation interest (Orders 26-27), which he acknowledged was valued at that amount. Otherwise, the parties keep their own assets and liabilities (Orders 31-34). The orders do not compel the father to pay money to the wife he does not possess.
7. Ground 2 blends complaints against both the mother and the father's own lawyer. It alleges the mother "did not provide full and frank disclosure" and alleges the father's lawyer failed to competently cross-examine the mother and tender documents in support of the father's case.
8. The complaints against the father's lawyer suffer the same fate as those rejected under the rubric of both Ground 2 in the parenting appeal and Ground 1 in this appeal.
9. The complaint about the mother's failure to provide financial disclosure is not truly a complaint of her failure to disclose, but rather of her belated disclosure. Both the ground and the submissions made in support of it allege the mother did not give fulsome financial disclosure until three weeks after she was required to do so, but that is not correct. She was apparently only late in confirming her complete disclosure by filing an undertaking later than required.
10. On 10 July 2024, the magistrate ordered the parties to file and serve undertakings of their disclosure and updated financial statements by 19 July 2024. The mother filed her updated financial statement on time. She belatedly filed her undertaking on 31 July 2024 confirming compliance with her obligation of financial disclosure, but that was still two weeks before the trial started on 12 August 2024. The father did not complain of any lack of financial disclosure by the mother in his Case Outline document, he did not seek any adjournment of the trial on account of the mother's alleged late financial disclosure, and his counsel did not cross-examine the mother about the issue. Evidently, even if the mother's financial disclosure truly was tardy, which allegation remains unproven, the father suffered no consequential prejudice.
11. Ground 3 is a demand that the liability of $61,000 attributed to the mother be removed from the balance sheet. Although the father did not say so, it may be presumed he contends the magistrate incorrectly characterised the financial transactions as a loan which the mother must repay.
12. As earlier noted, the magistrate accepted the mother was indebted to the lender for $61,000 for money advanced to cover her accommodation and other living expenses. The lender gave corroborative evidence of the loans, which the magistrate accepted (at [276]-[279]). The mother deposed to the loans being valued at $76,000, but she pressed at the trial for their valuation at only $61,000. Neither this ground of appeal nor the submissions made in support of it illuminate any error made by the magistrate in that finding.
13. Similarly, the property appeal has no reasonable prospect of success (s 46(2) and s 46(3) of the FCFCA Act).

1. The application to re-instate the appeal is dismissed.
2. In her Response to an Application in an Appeal filed on 31 March 2025, the mother additionally sought declarations and injunctions against the father pursuant to certain provisions of Pt XIB of the Act. Her claims for such relief are dismissed. These appellate proceedings are now spent and cannot be revived. Should she perceive the need for such relief then she must pursue an application for it within the original jurisdiction of either the Family Court of Western Australia or the Magistrates Court of Western Australia, though the original proceedings are also now complete (save for any enforcement proceedings) and so there is no apparent present need for remedies of that type.
3. No question of costs arises because the ICL did not make an application and because both parties were self-represented.

I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.