Mother Seeks Reinstatement of Appeal

Pinson & Pinson (No. 2) [2022] FedCFamC1A 18 (15 February 2022)

The Court dismissed an Application in an Appeal brought by the mother seeking that the Court provide transcript of the proceedings from which her appeal from final parenting orders made on 12 August 2021 was brought.  The mother seeks reinstatement of her abandoned appeal and dispensation of transcript.  The Court, in making its orders, relied upon the Family Law Act 1975 (Cth). 

Facts:

On 9 December 2021, the Court dismissed an Application in an Appeal brought by Ms Pinson (“the mother”) seeking that the Court provide a transcript of the proceedings from which her appeal from final parenting orders made on 12 August 2021 was brought.  In fact the time for filing the transcript had already passed by that time, nonetheless the mother still did not thereafter file a transcript and thus the appeal was deemed abandoned.  By her Application in an Appeal filed 24 December 2021, the mother now seeks for her appeal to be reinstated, and for the Court to dispense with her obligation to provide transcript.  In her affidavit filed in support of her application, the mother also sought that the Court provide to her a digital copy of the Auscript recording, to allow her to “find the relevant sections of the transcript”. 

Mr Pinson (“the father”) and the Independent Children’s Lawyer (“ICL”) both oppose the application for reinstatement and any dispensation with transcript.  The first reasons were delivered on 9 December 2021, and this application was filed on 24 December 2021.  No attempt was made in the mother’s material to explain the delay in complying with the Registrar’s orders.  The Amended Notice of Appeal asserts that Her Honour made an error of law in her failure to apply the presumption of equal shared parental responsibility.

Furthermore it was alleged that: her Honour applied unlawful discrimination in breach of r41.01 Federal Circuit Court Rules in the determination that an “unidentified mental illness” in the Mother somehow affects her parental capacity; failed to recognise the fabrication of evidence brought about by the Expert Witness, Dr D; failed to attribute the mental stress and anxiety on the Mother as being likely caused by the fraudulent actions of the Father, the Court and of Dr D and more. 

Issue:

Whether or not reinstatement of the appeal is necessary to enable the court to do justice between the parties.

Applicable law:

Family Law Act 1975 (Cth) s 60CC(2A) - provides that the child's best interests should be the paramount consideration in making an order. 

Analysis:

The mother was legally represented at trial, and no application for the primary judge to recuse herself was made by her counsel.  To the extent that some of the grounds assert an error of fact, the primary judge was not obliged to accept the mother’s contentions about the father.  The mother’s own counsel successfully submitted before the primary judge that the mother’s mental health issues meant she should not be cross-examined.  There is no evidence of any misconduct by the primary judge in her conduct of the trial.

There is no material demonstrating any failure by the mother’s barrister to properly conduct her case, particularly given that counsel are not mere mouthpieces for their client.  No prejudice was asserted by either the father or the ICL.  The mother contended she would be prejudiced, in that she will be bound by the decision of the primary judge, with which she strongly disagrees.  However given the lack of merit of her appeal, and the strong presumption that the primary judgment is correct, that cannot comprise prejudice. 

Conclusion:

The Court dismissed the Application in an Appeal filed 24 December 2021.  It is unnecessary to consider any application for dispensation.