CONDENE & CONDENE
[2013] FamCAFC 172
FAMILY COURT OF AUSTRALIA
| CONDENE & CONDENE | [2013] FamCAFC 172 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the husband appeals two of the parenting orders and all of the property settlement orders made by the Federal Magistrate (as he then was) on 12 September 2012 – where the wife opposes the appeal – where there is no merit in any of the grounds of appeal – appeal dismissed. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the wife seeks costs against the husband but limited to that part of the appeal of and incidental to the issue of the parenting orders – where the husband opposes any order for costs – where the husband has been wholly unsuccessful – where there are circumstances which justify an order for costs being made – costs order made as sought by the wife. |
| Family Law Act 1975 (Cth) ss 60CC, 61DA(1) & (4) |
| Granger & Clinton [2009] FMCAfam 544 VR v RR (2002) FLC 93-099 W and G (No 2) (2005) FLC 93-248 |
| APPELLANT: | Mr Condene |
| RESPONDENT: | Ms Condene |
| FILE NUMBER: | MLC | 1948 | of | 2012 |
| APPEAL NUMBER: | SOA | 73 | of | 2012 |
| DATE DELIVERED: | 29 October 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 13 June 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 September 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 970 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Tulloch |
| SOLICITOR FOR THE APPELLANT: | J. A. Middlemis |
| COUNSEL FOR THE RESPONDENT: | Mr O’Shannessy |
| SOLICITOR FOR THE RESPONDENT: | Robertson Hyetts |
Orders
The appeal be dismissed.
The husband pay the costs of the wife of and incidental to that part of the appeal against the parenting orders made by the Federal Magistrate (as he then was), such costs to be as assessed on a party/party basis in default of agreement about the same.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Condene & Condene has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
|
Appeal Number: SOA 73 of 2012
File Number: MLC 1948 of 2012
| Mr Condene |
Appellant
And
| Ms Condene |
Respondent
REASONS FOR JUDGMENT
Introduction
By a further amended Notice of Appeal filed on 8 April 2013 Mr Condene (“the husband”) appealed against two of the parenting orders and all of the property settlement orders made in these proceedings by Federal Magistrate Kemp (as he then was) on 12 September 2012. Ms Condene (“the wife”) opposes the appeal.
The appeal was heard on 13 June 2013. The parties were able to reach agreement on that date about the appeal against the orders for property settlement, and I made orders by consent disposing of that part of the appeal.
The parties were unable to reach agreement about the appeal against two of the parenting orders, and the hearing proceeded as to that part of the appeal.
In summary the parenting orders appealed against provided for the wife to have sole parental responsibility for the three children of the marriage who were under the age of 18 years (order 2). This order was subject to the proviso that before making any significant decision in relation to the children’s major long term issues (save in the case of medical emergencies) the wife was to use her best endeavours to consult with the husband, provide him with any reports and information available concerning the decision under issue, and permit him an appropriate opportunity to consider that issue and then consider his views in good faith (order 3).
On appeal the husband sought in effect that these orders be set aside and the proceedings be remitted for rehearing before a different Federal Magistrate.
Background
At the time of the trial the husband was aged 49 years, and the wife was aged 47 years.
There are four children of the marriage, namely:
a)A, who was aged 18 years at the time of the trial;
b)B, who was aged 16 years at the time of the trial;
c)C, who was aged 13 years at the time of the trial; and
d)D who was aged 10 years at the time of the trial.
The husband and the wife met in 1987. They became engaged in August 1987. They commenced cohabitation and married in 1988.
Apart from the wife’s period of maternity leave following the birth of the child C, both parties were largely engaged in full-time employment throughout the relationship. Submissions of counsel for the husband at the hearing of the appeal suggest that the husband is no longer employed.
In October 2005, the husband was found guilty of an indecent assault on a
16 year old boy, despite having entered a plea of not guilty. No conviction was entered, but he was fined $500. An appeal by the husband was dismissed with the sentence affirmed.
The parties separated in December 2011. The wife commenced proceedings for property settlement in the Federal Magistrates Court (as it then was), and on
19 April 2012 amended her application to seek both parenting and property settlement orders.
On 11 April 2012 consent interim orders were made providing for the three youngest children to live with the husband from Saturday to Tuesday each week, and with the wife at all other times.
On 24 May 2012 the wife filed a Notice of Child Abuse or Family Violence.
On 20 June 2012 the husband made six applications for Intervention Orders against the wife and the adult child A on behalf of himself and his parents. The wife made her own application for an Intervention Order against the husband. Three of those applications resolved at first mention with the child A, the husband and the wife consenting (without admission) to 12 month intervention orders.
On 6 July 2012, the husband pleaded guilty to, and was subsequently convicted of, a charge of indecent assault of a 20 year old male and fined $1,500.
The reasons for judgment of the Federal Magistrate
The Federal Magistrate commenced his reasons for judgment by setting out the orders that were sought by each party.
In summary, the wife sought the following parenting orders at the outset of the hearing:
a) sole parental responsibility for the children;
b) that the children live with her;
c)that the younger children, C and D, spend time with the husband on alternate weekends, during school holidays, and on special occasions such as the children’s birthdays, the husband’s birthday, Christmas Day and Father’s Day;
d)that the child B spend time with the husband as determined by B;
e)that whichever party receives any school reports or notifications of any school or social event that the children are involved in or invited to provide a copy to the other party;
f)that the parties notify each other as soon as reasonably practicable of any medical or other emergency affecting the children; and
g)that a party may request a suspension of the other party’s time with the children for a period of two consecutive weeks to allow the requesting parent to take the children on a holiday provided that at least eight weeks notice is given and the other party provides their consent.
In summary, the husband sought the following parenting orders at the outset of the hearing:
a)that the husband and wife retain equal shared parental responsibility for the children;
b) that the children live with him;
c)that the children spend time with the wife on alternate weekends, alternate Wednesdays, during school holidays, on the children’s birthdays, the wife’s birthday, Mother’s day, Christmas Day, and such further or other times as agreed between the parties;
d)that the time the children would ordinarily spend with the wife be suspended on Father’s day, the husband’s birthday, for half of Christmas Day, and half of the children’s birthdays;
e)that whichever party the children are spending time with shall have sole responsibility for making decisions about the children’s day to day welfare, care and development during the time the children are in that party’s care;
f)that whichever party receives any school reports or notifications of any school or social event that the children are involved in or invited to provide a copy to the other party;
g)that the parties notify each other as soon as reasonably practicable of any medical or other emergency affecting the children; and
h)that a party may request a suspension of the other party’s time with the children for a period of two consecutive weeks to allow the requesting parent to take the children on a holiday provided that at least eight weeks notice is given and the other party provides their consent.
The Federal Magistrate noted that the husband changed his parenting proposal to “one of essentially spending equal time with the children on the basis of seven nights a fortnight” during the course of his giving evidence on the third day of the hearing.
His Honour set out the procedural history of the matter, including the orders that had been made by the court prior to the hearing.
His Honour set out the relevant provisions of the Family Law Act 1975 (Cth) (“the Act”), including ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, as well as the guidance on the proper interpretation of those provisions as outlined in MRR v GR (2010) 240 CLR 461 and Goode and Goode (2006) FLC 93-286.
His Honour outlined the documents relied upon by each party, the exhibits that were tendered during the hearing, and the “essential issues in dispute the subject of determination”, including relevantly, parental responsibility.
The Federal Magistrate then set out the background facts as have been relevantly summarised above.
His Honour expounded at length upon the expert evidence presented during the final hearing. His Honour first considered the evidence of the family report writer Ms S. His Honour summarised her evaluation as follows at [53]:
a)A has cut off his relationship with the husband and has nothing to do with him.
b)A, B, C and D all appear to have warm and close relationships with the wife.
c)B, C and D appeared to have warm and close relationships with the husband.
d)B appeared mature enough for his age to make his own decisions.
e)C and D are caught in the middle of the conflict between the husband and the wife and were, as a result, unable to voice a definite preference about living and spending time.
f)C and D were focussed on feeling responsible for the emotional well-being of the parents, which demonstrated how the conflict between the husband and the wife was affecting them.
g)C found that she was being used as a messenger between the husband and the wife as a result of their conflict.
h)C and D have sought to deal with the parental conflict by showing loyalty to both the husband and the wife and that, as such, it is not an emotionally healthy place for the children to be and sooner or later they will suffer serious effects, if the conflict does not settle down and subside.
i)Factors other than the views of C and D would need to be considered by the Court to determine appropriate orders.
j)That pending the assessment by a psycho-sexual psychologist and any investigation by the Department of Human Services, that the husband’s time should be in the presence of a responsible and appropriate adult.
k)That both parents have the capacity to meet the intellectual needs of the children.
l)As a result of the conflict between the husband and the wife, the children’s overall emotional needs are not being met.
m)That both parents have unresolved issues from their relationship and separation and that these are preventing them from developing a proper parenting relationship and from being able to communicate as parents.
n)The husband believed that the wife had tried to influence the children against him, but there was no evidence of this from the children’s interviews. However, post the family report interviews, it has become clear that B does not currently wish to see the husband.
o)That parental responsibility should be shared.
p)That C and D should spend alternate weekends as well as Wednesdays from after school to 7.30pm with the husband, but until assessments about the husband are complete that any time spent with him should be with a responsible and appropriate adult present. Otherwise, the children should live with the wife.
q)Both C and D would manage emotionally if they were to live with the wife and spend time with the husband, as this would be of some relief for them not to have to make a decision and to find themselves no longer caught up in conflict.
His Honour noted that Ms S “changed her views concerning shared parental responsibility” during her oral examination, to the extent that she now “recommended [that parental responsibility] be exercised by one parent.”
His Honour continued at [57]:
She supported the view that sole parental responsibility vest in the wife, given her recommendation that the children live with her. Her changed view was based on the escalation of the parental conflict since the provision of her written report. The husband had made very serious allegations in his affidavit including that the wife was in a lesbian relationship, that she had sexually assaulted [B] when he was 4 or 5 years old and sexually assaulted [A] when he was 6 or 7 years old and that, since separation, she had been sleeping naked in her bed with [D]. The wife denied all of these allegations, save that she said that [D] had been sleeping in his own bed in her room, given their current rented accommodation. The family report writer said, and the Court accepts, that it is highly unlikely that the parties would be able to communicate as parents so as to share parental responsibility.
In providing his assessment of Ms S’s evidence, the Federal Magistrate said this at [59]:
The Court has quoted extensively from the family report writer’s report (as set out above) and the report writer’s recommendations are afforded significant weight, given that the recommendations and opinions expressed (and assumptions and observations which grounded them) were soundly based in accordance with the body of evidence before the Court and none of the relevant factual matters relied upon by the family report writer have been found to be inconsistent with such evidence. The family report writer was an impressive witness, who as Mr Brown SC submitted, “responded in an intelligent way to the rhythm of the case as it developed”. The Court has had regard to the general observations set out by the Full Court of the Family Court of Australia in Hall & Hall (1979) FLC 90-713 in this regard.
His Honour then turned to the expert evidence of Ms R, a “senior consultant forensic psychologist” who was tasked with providing “a written report to assess the husband’s potential risk of sexual offending and, in particular, as to any risk he posed to the children.” Ultimately Ms R classified “the husband’s risk as low-medium with respect to his general recidivism but concluded that he remained ‘low risk’ with respect to any sexual offending against his children.” She recommended that the husband “participate in parenting programs for separated fathers and attend individual counselling.”
His Honour noted that Ms R was “a very impressive witness” and that he accepted “her evidence and her assessment of the husband’s risk profile.”
The final expert who gave evidence at the hearing before the Federal Magistrate was Ms J, a psychologist who provided the Court with “an assessment of the wife which formed an annexure to the wife’s affidavit.” That report was admitted into evidence without challenge. Ms J did not give oral evidence. His Honour noted that Ms J’s recommendations were that “the wife consult her doctor and participate in regular counselling” and that “the wife not have direct contact with the husband” until such time as “she is better able to manage her anxiety.”
His Honour then said this about parental responsibility:
71.The wife seeks sole parental responsibility. The family report writer suggested equal shared parental responsibility in her report and then changed her recommendation in her oral evidence. The husband initially adopted the family report writer’s first recommendation and then in cross-examination indicated that he wished to seek sole parental responsibility. In final submissions, he sought equal shared parental responsibility. That final position was difficult to maintain in light of Mr Brown’s concession that, at the moment, “the parties couldn’t agree on the time of day… each pointing the finger at each other… and the rear view mirror hasn’t been looked into during these proceedings”. The Court accepts that, to an extent, the parties have not focused on the trail of destruction left behind, in the wake of the parental conflict.
72.It is commonly accepted that for parents to exercise equal shared parental responsibility there needs to be a degree of communication and cooperation between them, so as to enable decisions to be made jointly. The Court had made an interim order for [B] to attend upon a dietary specialist for an urgent appointment (see paragraph 6 above). Given the husband’s asserted concerns about [B’s] eating and health, it is extremely surprising that nothing was done to have this appointment take place. In those circumstances, the accepted non-compliance with that order is highly influential in there being a sole parental responsibility order and weight is attached to that.
73.The husband asserted that the wife had attempted to murder him and that she had been an accomplice to [A] attempting to murder him and that she and [A] had also attempted to murder his parents by attending at their hospital, when he had specifically asked the wife not to attend. The wife denied that she had come into contact with the husband’s parents, but said that she had attended, spoken to the husband’s sister and kept her distance, remaining in the waiting room, café or chapel, so as to allow the children to visit the husband’s parents. The Court accepts the wife’s version of these events which included that the husband was the one who approached her and yelled abuse in the presence of the children. The husband, it would appear from the face of the documents filed, has himself sought Intervention Orders against both the wife and [A] on behalf of his parents. This appears a somewhat bizarre reaction, which if not specifically designed to, certainly has had the effect of increasing conflict.
74.In terms of the high level of conflict demonstrated above, the conceded lack of an ability to communicate (the wife being unable to look the husband in the eye, talk to him other than talking to his “toes” or to be physically near him), and the lack of trust existing between the parties, the Court is satisfied that there is sufficient relevant evidence to rebut the presumption as to equal shared parental responsibility as not being in the best interests of the children, after a consideration of the primary and additional considerations referred to below and the Court accepts the clear recommendations of the family report writer to that effect, which are afforded significant weight. Mr Brown SC submitted that the Court would be slow to cut the husband out of the opportunity to be involved in making decisions for the parenting of the children. He submitted that there could be prospects that the parties could improve their level of communication in the future and that, if that did not occur, then the parties could come back to Court to alter any order from equal shared responsibility to sole parental responsibility. The Court is of the view that it must assess the position at this point in time as it is important that any decisions in relation to the children can be made effectively now. If, however, the parents’ level of communication improves and both seek to vary the order, then that can, of course, occur, by consent.
75.The husband concedes that, at this point in time, he is unable to discuss issues relating to parental responsibility with the wife. He says that he is “hopeful that once these proceedings have concluded and our children have undergone appropriate therapeutic counselling, that matters will resolve” to the effect that the parties will be “ultimately” able to discuss such issues. That is certainly not the position at the time of hearing.
76.The Court in addition to consideration of the above, invited the wife to consent to an order that required her to consult with the husband and to provide him with any information and to seek his views prior to making any decision with respect to any major long term issues. The wife readily consented to an order in such terms, which will be made, and significant weight is attached to that concession in support of her submission that she did not seek to cut the husband out of any decision making process but only sought to have the final say in that decision, if the parties were unable to reach any agreement.
77.The Court accepts that the wife is the appropriate parent to have sole parental responsibility.
The grounds of appeal
The remaining grounds of appeal as set out in the husband’s further amended Notice of Appeal filed on 8 April 2013 are as follows:
1.By rebutting the presumption as to equal shared parental responsibility the learned Trial Federal Magistrate erred as a matter of law in failing to apply the proper test that the court should not interfere in parental responsibility as a last resort or where the welfare of the child will clearly be advanced.
2. The learned Trial Federal Magistrate failed to give proper reasons as to why an order for sole parental responsibility should be made in favour of the wife rather than the husband, in circumstances where the other parenting orders provide that the husband have substantial time with the children and there is no legal presumption that an order for sole parental responsibility must be made in favour of the parent with the most time.
3. The learned Trial Federal Magistrate erred in making order 3 as it is unenforceable and inconsistent with any findings that might be in support of the proper test that the court should only interfere in parental responsibility as a last resort or where the welfare of the child will clearly be advanced.
At the hearing of the appeal counsel for the husband sought to resile from Ground 3 to the extent that it alleges that order 3 is unenforceable. That was done after I raised with counsel that I was concerned about the question of unenforceability and that if I found that was the case then the appropriate course would be to allow the appeal in part, and set aside order 3. In effect I also indicated that that was a discrete issue not affecting the order for sole parental responsibility (order 2).
Counsel indicated that the husband did not seek that only order 3 be set aside and thus counsel recast Ground 3 limiting the ground to a complaint that order 3 was inconsistent with and undermined the order for sole parental responsibility (order 2). If this ground was successful though it was recognised that both orders 2 and 3 would need to be set aside and the matter remitted for re-hearing.
Discussion
Ground 1
The complaint here is that the Federal Magistrate failed to apply the proper test in determining that the presumption of equal shared parental responsibility was rebutted.
By s 61DA(1) of the Act, the court is required to apply a presumption that it is in the best interests of a child for a child’s parents to have equal shared parental responsibility. However, by s 61DA(4) that presumption may be rebutted by evidence which establishes that it would not be in the best interests of the child for his or her parents to have such responsibility.
The husband’s counsel submitted that “the court should not exercise it’s [sic] discretion to rebut the presumption except as a last resort or where the welfare of the child will clearly be advanced”. In support of that submission she referred the court to what was said by the Full Court (Kay, Coleman and Warnick JJ) in VR v RR (2002) FLC 93-099, by a single judge (Carmody J) in W and G (No 2) (2005) FLC 93-248, and by a Federal Magistrate (Federal Magistrate Dunkley) in Granger & Clinton [2009] FMCAfam 544.
The Full Court in VR v RR said this:
28.The overall framework of the legislation can be seen to provide that both parents have parental responsibility for the child but that a court may take away or diminish an aspect of parental responsibility if it is “proper” to do so.
29.Whilst the word “proper” connotes a very wide area of discretion, in our view it is clear from the legislative scheme that any intervention by the Court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner that parent deems appropriate, should be made only where the Court is of the view that the welfare of the child will be clearly advanced by that order being made.
30.In our view it is not the role of the Court to identify and then seek to determine every matter that is in issue between two estranged parents who cannot agree on the way their child is to be raised. The Court should only interfere in the way in which a parent proposes to raise a child to the extent that the welfare of the child requires interference.
However, as is plain, this was a decision made prior to the 2006 amendments to the Family Law Act which introduced the concept of equal shared parental responsibility and the presumption in s 61DA. Accordingly, this decision is of little or no assistance in interpreting on what basis that presumption should be rebutted.
The comment made by Carmody J in W and G (No 2) is in a similar category. His Honour said this at [123]:
Judicial interference in the performance of an aspect of parental responsibility should occur only as a last resort or where the welfare of the child will clearly be advanced by the order being made.
Not only did this also pre-date the 2006 amendments, but it is the only decision that counsel could find where the concept of “a last resort” is referred to.
In any event, the plain words of the sub-section itself provide the parameters of the discretion, namely, the evidence must satisfy the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility. There is no basis to fetter that discretion by imposing notions of “a last resort” or the need for positive advancement of the welfare of the subject child.
Finally, there is the decision of the Federal Magistrate (as he then was) in Granger & Clinton. This was a case decided after the 2006 amendments, and the Federal Magistrate determined that the presumption was rebutted because with the father in gaol and the limited communication that was available there was no real prospect that the parties would be able to make joint decisions with respect to their children.
However, I fail to see how this supports the husband’s argument. Clearly the Federal Magistrate reached his conclusion on the presumption by considering what was in the best interests of the children, as the sub-section requires.
In this case too, that is what the Federal Magistrate did. His Honour found that there was “sufficient relevant evidence to rebut the presumption … as not being in the best interests of the children”. His Honour came to that conclusion “after a consideration of the primary and additional considerations” set out in s 60CC of the Act, and by accepting the “clear recommendations of the family report writer to that effect.” (See paragraph 74 of the reasons of the Federal Magistrate).
Accordingly, I am satisfied that the Federal Magistrate applied the correct test, as required by the sub-section, and there is no merit in this ground of appeal.
Ground 2
The husband contends that the Federal Magistrate failed to provide “proper reasons” for granting the wife sole parental responsibility rather than the husband. Significantly, I observe that the challenge is not to the reasons given for rebutting the presumption and finding that it was in the best interests of the children for one party to have sole parental responsibility.
This is also a ground that cannot succeed, and it is disingenuous of the husband to pursue it.
The plain fact is that at trial, the husband initially sought equal shared parental responsibility, then in cross-examination indicated that he wished to seek sole parental responsibility, but in final submissions sought equal shared parental responsibility again. It was only the wife who consistently sought sole parental responsibility, and thus there was no basis for his Honour to consider granting the husband sole parental responsibility. It was not sought by the husband in the ultimate. Accordingly, it is not open to the husband, on appeal, to submit that the Federal Magistrate erred by not providing reasons for not making an order that was not sought by the husband.
That is sufficient to dispose of this ground, but I also observe that the evidence before the Federal Magistrate pointed inexorably to it being in the best interests of all of the children for the wife to have sole parental responsibility rather than the husband. For example, Ms R said this in her evidence (referred to in paragraph 65 of his Honour’s reasons for judgment):
h)The husband did not have insight into the impact of the conflict on the children and his relationship with them.
i)The husband was comfortable with being assertive and was likely to behave assertively.
j)The husband appears to have some understanding of the children’s developmental levels and the need for stability (emotionally and physically) however this was overshadowed by his ego-centric need to be involved with the conflict with the wife.
k)The husband continues to have difficulties addressing the strong emotional reactions he is experiencing and tends to lay blame on the wife, rather than consider that the conflict generated is having a significant impact upon the children.
(My emphasis)
Finally, I note that in this ground of appeal the husband suggests that “there is no legal presumption that an order for sole parental responsibility must be made in favour of the parent with the most time”. The husband is clearly correct in this submission, but if the suggestion is that that is how his Honour decided this issue then I reject that suggestion. To repeat, there was ample evidence before his Honour which justified the conclusion that he reached, and I would add that although it is not a “legal presumption”, the fact that one parent has the most time is a relevant factor in determining who should have parental responsibility.
There is no merit in this ground of appeal.
Ground 3
As referred to above, this ground altered during the hearing. It is no longer being suggested that order 3 is unenforceable, but rather that it is inconsistent with the rebuttal of the presumption in s 61DA(4) of the Act and the granting of sole parental responsibility to the wife. As a result, this ground is now said to support a finding that the appeal against orders 2 and 3 together should be allowed and those orders set aside.
In short compass, the husband submits that given that order 3 can only operate if the parties are able to communicate with each other, that is inconsistent with and undermines the basis for finding that equal shared parental responsibility is not in the best interests of the children, namely that the parental conflict is such that there is an inability to communicate and a lack of trust.
However, that misrepresents the Federal Magistrate’s reasons for making
order 3.
The evidence was clear that at the time of the hearing the conflict was at such a high level that neither party could discuss any parenting issue with the other. However, the husband was hopeful that in time the parental conflict would resolve such that the parties could communicate with each other about their children.
Accordingly, as his Honour recorded in paragraph 76 of his reasons for judgment, the court “invited the wife to consent to an order that required her to consult with the husband and to provide him with any information and to seek his views prior to making any decision with respect to any major long term issues”. The wife readily consented to that order and as the wife’s counsel points out in his written submissions, the husband’s counsel did not speak against it.
Thus, again, there is no merit in this ground of appeal.
Conclusion
Having found no merit in the grounds of appeal the appeal must be dismissed.
Costs
At the conclusion of the hearing the court sought submissions from counsel as to the issue of costs depending on the result of the appeal.
In the event that the appeal was unsuccessful, the wife’s counsel sought an order for costs against the husband but limited to the costs of that part of the appeal of and incidental to the issue of the parenting orders.
Counsel for the husband opposed any order for costs in the event that the appeal was unsuccessful. She relied on the husband’s financial circumstances in that it was said that he was not in employment and the wife was in a vastly superior financial position. She sought that each party bear their own costs.
Given that the appeal will be dismissed the husband has been wholly unsuccessful and accordingly there are circumstances that justify an order for costs being made. Although the court is obliged to take into account the financial circumstances of the parties, and I do so, the financial circumstances of the husband cannot prevent an order for costs being made where it is otherwise warranted. Accordingly I propose to make the order for costs sought by the wife.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
29 October 2013.
Associate:
Date: 29 October 2013
0
2
0