Crispen & Crispen
[2008] FamCAFC 14
•21 February 2008
FAMILY COURT OF AUSTRALIA
| CRISPEN & CRISPEN | [2008] FamCAFC 14 |
| FAMILY LAW - APPEAL – From decision of Magistrate – CHILDREN – Parental responsibility – With whom a child spends time – Competing proposals of parents – Father sought an arrangement at trial that the child would spend approximately equal time with both parents – Mother sought sole parental responsibility except for day to day responsibility when the child would spend time with the father – Magistrate made orders essentially in terms of mother’s proposal – Father appealed on the basis of the cogency and sufficiency of the Magistrate’s reasons – Argued on appeal that there was much evidence not discussed in the reasons but which was relevant to the Magistrate’s conclusions – Appellant referred to evidence of various events which he contended were relevant to the issues before the Magistrate – Arguments as to cogency were that findings about the positive capacities of the father were inconsistent with negative findings about him and with the final result; and that some ultimate conclusions were unsupported by preceding findings that were a necessary foundation for those ultimate conclusions – Appeal dismissed FAMILY LAW - APPEAL – Application to adduce fresh evidence – Father sought to adduce SMS text messages sent by the mother to the father – Argued that the SMS messages would have been relevant to the learned Magistrate’s conclusions about the father based upon the content of those messages sent by him to the mother – At the appeal, the respondent raised the context of the issue at trial of SMS texts between the parties – Application refused |
| Family Law Act 1975 (Cth); ss 60CC; 60CC(2); 60CC(3); 61DA; 65DAA; 65DAA(5); 117(2A) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) |
| A v J (1995) FLC 92-619 Athens & Anor v Randwick City Council [2002] NSWCA 83 Bennett and Bennett (1991) FLC92-191 CDJ v VAJ (1998) FLC 92-828 Goode and Goode (2006) FLC 93-286 Soulemizis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Strbak v Newton (NSWCA, 18 July 1989, unreported) Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447 |
| APPELLANT: | MR CRISPEN |
| RESPONDENT: | MS CRISPEN |
| APPEAL NUMBER: | WA | 13 | of | 2007 |
| FILE NUMBER: | PTW | 5573 | of | 2006 |
| DATE DELIVERED: | 21 February 2008 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | COLEMAN, WARNICK AND THACKRAY JJ |
| HEARING DATE: | 29 January 2008 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 24 July 2007 |
| LOWER COURT MNC: | N/A |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr S Jones |
| SOLICITOR FOR THE APPELLANT: | Hearty and Tam |
| COUNSEL FOR THE RESPONDENT: | Mr F Castiglione QC |
| SOLICITOR FOR THE RESPONDENT: | Lane Buck & Higgins |
Orders
That the application to adduce further evidence be dismissed.
That the appeal be dismissed.
That the father pay the mother’s costs of and incidental to the appeal as agreed, and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Crispen and Crispen is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 13 of 2007
File Number: PTW 5573 of 2006
| MR CRISPEN |
Appellant
And
| MS CRISPEN |
Respondent
REASONS FOR JUDGMENT
This appeal concerns the adequacy of the reasons of Fleming M of the Magistrates Court of Western Australia for parenting orders he made on 24 July 2007. The challenge is both to the cogency of the reasons and to their sufficiency.
The parties to the litigation, [Mr and Ms Crispen], are the separated parents of a young child, [B], born in [2001]. The father is [in the IT industry], aged 34 years at trial; the mother [works in the education industry], aged 32 years at trial. Neither party had re-partnered at that time.
When the trial commenced before Fleming M in early May 2007, the father sought an arrangement whereby the child would spend approximately equal time with each parent, in effectively half week blocks, and school holidays would be shared. He also sought equal shared parental responsibility. The mother sought that she have sole parental responsibility, except for day to day parental responsibility when the child was with the father. She basically proposed that in each fortnight the child spend from Friday, after school, to before school on Tuesday in the following week with the father, holiday periods of (initially) five day blocks with the father, and that the child be otherwise with her. This was similar to arrangements that had been in place for much of the time since the parties separated in February 2006.
Fleming M made orders essentially in terms of the mother’s proposal and it is those orders that the father appeals. The notice of appeal contains seven grounds, but in our view, all the complaints therein raised fit within the challenge as earlier described.
In his written outline Mr Jones, Counsel for the father, argued that the learned Magistrate should have addressed parenting arrangements beyond those proposed by the parties. However, during the hearing of the appeal, Mr Jones acknowledged that there was no evidence in support of any particular alternative and he conceded that while the learned Magistrate could have considered alternatives, he was not obliged, in the circumstances of this case, to do so.
In support of his appeal, the father seeks to put before us further evidence, relating to a great many SMS text messages sent by the mother to the father. This application will be discussed after our consideration of the central arguments, when the evidentiary context into which the further evidence would fit, will have been discussed.
Toward the end of his submissions, following discussion with the Bench, Mr Jones he indicated an interest in seeking leave to add to his grounds of appeal. After a short adjournment he sought to add a further ground. This will also be discussed later.
The concepts of cogency and sufficiency are interrelated. However, isolating them for discussion helps identify the thrust of the argument in relation to particular matters dealt with, or not dealt with, in the reasons.
Were the reasons for judgment sufficient?
Though Mr Jones initially suggested that the learned Magistrate had failed to deal with some significant “issues”, his focus was on what might more often be called “the evidence”, or at least “evidentiary issues”, as opposed to factors material to the ultimate conclusion, such as those set out in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”). In short, Mr Jones’ point basically was that there was much evidence not discussed in the reasons, but which was relevant to conclusions that the learned Magistrate expressed.
In no instance, however, did Mr Jones argue that, in respect of any particular conclusion, there was no evidence to support it. He accepted the proposition put to him during argument, that the challenge was to adequacy, not accuracy. In fact, in most instances his argument was not even so much that conclusions of the learned Magistrate were against the weight of the evidence, but rather, as seen, simply that the evidence had not been discussed. The hurdle to success of that argument is set fairly high, as the following authoritative statements demonstrate.
Mahoney JA said in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 274:
… A fact is found in a particular case if the judge is satisfied that it is so. … The determination of facts is assumed to be objective. But it would be to misunderstand the basis of a decision, and in particular decisions in matters of assessment, weight and the like, to assume that decisions can always, or perhaps ordinarily, be justified by objective rather than subjective considerations. And, if such be true of the reasoning process, it is, in my opinion, a mistake to conclude that a judge should or can set forth the reasoning process he has followed from one fact to another.
The Full Court of this Court said in A v J (1995) FLC 92-619 at 82,232:
It is important to guard against too zealous an application of the requirement to give reasons, particularly in circumstances where it is argued that inadequacy in the reasons lies in the failure to make findings of fact leading to a finding of a material or an ultimate fact: see Soulemezis per Mahoney JA.
In Strbak v Newton (NSWCA,18 July 1989, unreported) Samuels JA (with Gleeson CJ and Priestly JA agreeing) said:
What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion. There is no requirement, however, that reasons must incorporate an extended intellectual dissertation upon the chain of reasoning which authorises the judgment which is given.
In the present case, the reasons are certainly succinct; but that is often to be regarded as a judicial virtue…
Giles JA said in Athens & Anor v Randwick City Council [2002] NSWCA 83:
The touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning: indeed, in the decision-making process there are often judgmental steps which can only be stated without elaboration…
In Whisprun Pty Ltd (formerly Northwest Exports Pty Ltd)v Dixon (2003) 200 ALR 447 at [62] Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The Full Court of this Court said in Bennett and Bennett (1991) FLC 92-191 at 78, 267:
…In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached. (emphasis added).
In the light of these remarks, we turn to the learned Magistrate’s reasons for judgment and then further consider the arguments about sufficiency.
Fleming M’s reasons for judgment
Among other history, Fleming M recorded that, when the parties separated in February 2006, the mother moved out of the family home and for a short period the parents:
… effectively shared the home with the wife moving back into the house for the periods of time she cared for [B] and moving back out again during the periods that the father was with the child.
However, after a “relatively short term”:
…the husband moved out of the home and the wife returned to live in the home with the child. The present sharing arrangement or co-parenting arrangement has been in place since that time. (reasons of Fleming M of 24 July 2007).
The arrangements were substantially reflected in a court order, made on 12 October 2006, that [B] spend time with the father from 8.00am on Thursday until 12 noon on Saturday each week, but otherwise be in the care of the mother.
The learned Magistrate found:
Both parties have the ability to care for [B] in accordance with their proposals. The wife … can so arrange her affairs so as to be a full time mother. Similarly the husband has arranged his working commitments … so as to be able to care for the child in accordance with the orders he seeks.
After setting out these and a background of other matters, Fleming M turned to discuss “THE LAW”. He addressed the “extensive amendments” effected by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) – paraphrasing the terms of many of the sections of Part VII that were introduced by that Act – and discussed the decision of the Full Court of the Family Court of Australia in Goode and Goode (2006) FLC 93-286.
There is no argument with what the learned Magistrate said of the law, as distinct from the contention that he failed to properly apply it.
Following discussion of the law and “THE STEP BY STEP APPROACH” that it involved, the learned Magistrate identified the number of witnesses in each case and each party’s competing position.
The next topic that Fleming M addressed was “The issues between the parties”. He set out contentions of each party, in passages to some of which we will later return, and then isolated the principal issues between the parties, which he described as firstly, the conduct of the husband (as alleged by the wife); that he was abusive during the relationship and had been unable to accept the breakdown of the marriage and had deliberately or inadvertently involved the child in the separation) and secondly, the alleged inability of both parents to communicate effectively in matters involving the child.
The learned Magistrate then recorded “Uncontested facts”, these being:
(a)that both parents have had a significant involvement with the child both before and after separation.
(b)that both parents are good parents and that they have the child’s interests as the paramount consideration.
(c)there is no suggestion of any violence or abuse towards the child.
Turning to the “WITNESSES”, the learned Magistrate accepted the mother overall as a credible witness. On the other hand, he found the father less credible. He then expressed a finding, not as to credibility but of significance to the end result. He said:
I have no doubts about his interest and concern for the child and that he has her best interests as heart. I do, however, believe that there are still underlying problems in his behaviour that are yet to be addressed.
Next, under the heading “THE EVIDENCE”, Fleming M made findings with reference to factors set out in s 60CC of the Act. Some of these findings are the subject of submissions relating to the cogency of the reasons and will be later discussed. For present purposes, we note that the learned Magistrate made some findings favourable to the father’s proposals. For example, the learned Magistrate said:
On the evidence presented, regarding the primary considerations (s 60CC(2)) there is no argument that [B] will benefit from a meaningful relationship with each parent and that there is no concern that (given the right orders) she will be subject to any physical or psychological harm.
On the other hand, he drew some conclusions unfavourable to the father’s case. Among other findings, he said:
…Section 60CC(4) is particularly significant in this case.
He then set out the heading and the subsection’s terms, the heading being:
[Extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent]…
He continued:
Section 60CC(4)(A) is particularly important in this case and indeed is pivotal to this determination. That Section provides:
60CC(4A) [Where child’s parents have separated]
If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The major area of contention in this case involves the issue of parental conduct post separation.
The learned Magistrate then discussed evidence from which he concluded that the father had involved [B] in, or exposed her to, matrimonial problems. Fleming M found that the father’s behaviour was not “appropriate conduct as a parent” and demonstrated “a degree of immaturity”. Other events were “examples of poor conduct and lack of insight as a parent”. Moreover, Fleming M did not accept the father’s “retraction of his actions in hindsight”.
Having considered the factors set out in s 60CC, the learned Magistrate turned to consider s 61DA and found that the presumption of equal shared parental responsibility had not been rebutted. He then directed himself to s 65DAA and, addressing subsection (5), in particular, said that he had to make findings in the following areas:
1.The parents reside proximate to each other given that the father has now moved to the same locality where the child is residing. …
2.There can be no doubt that the parents have the capacity to both spend equal time or a substantial and significant time with the child. …
3.Whether or not the parents have the current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of either equal shared time or substantial time. …
4.That the impact of either proposal would not materially affect the welfare of the child. …
He then said that the question of communication was the “real area of concern” and concluded that there was an inability of the parties to effectively communicate and that there was obsessional conduct on the part of the father. He said:
…I take the view that these parties have not demonstrated, in the Court’s view, an ability to be able to properly communicate and determine issues in relation to the child.
Given that finding, this is an important factor in deciding whether the parties should in fact spend equal time with the child or whether or not one party should have the larger share of time and on that basis reduce the issues that may arise between the parties in respect of [B].
The learned Magistrate then said:
FINDINGS
Any determination in this case as to the actual time to be spent with a parent (Section 65DAA) be it equal time or significant and substantial time is predicated on the basis of it being in the best interests of the child (Section 60CC).
On the basis of the following findings I determine that in the court’s view it is not in [B]’s best interests that she spend equal time with each parent as proposed by the husband. I say this for the following reasons:
(1)A regime needs to be put in place that not only provides for the child but also distances the parents so as to alleviate possible conflict.
(2)The husband’s proposal would unfortunately not effectively separate the parties and would leave unresolved issues that potentially could cause further problems between the parties that would necessarily impact unfavourably on the child.
(3)The orders that I propose will hopefully have the effect of preventing or at least reducing the possibility of further litigation between these parties.
(4)The regime proposed by the wife would, in the court’s view, provide for a more stable environment for [B] and is to be preferred to the husband’s week about proposal designed to accommodate in part his work commitments.
(5)The proposals of the wife would allow [B] to spend significant time with her father, minimise potential conflict between the parents and allow for the wife to spend quality relaxation time with the child.
(6)The wife’s proposal would also more effectively sever what the court sees to be an ongoing or lingering vestige of what the husband would see as a relationship with his former wife. It would as far as possible ensure an opportunity for him to get on with his life which again in the court’s view would be both beneficial to him and the child.
The learned Magistrate concluded his reasons by expressing his preference for the wife’s proposal, which he described as “of the child spending significant and substantial time with the father”.
Further consideration of the complaint of insufficiency
In his Outline of Argument, Mr Jones referred to evidence of various events which he said were relevant to issues put before the learned Magistrate; the negative attitude of the mother towards the father; the prospect that the father had moved beyond grieving for the loss of the relationship with the mother and would not behave inappropriately in the future; that the father would be able, for his part, to effectively communicate with the mother; and the parties’ credibility.
In his oral submissions, Mr Jones took us to parts of the affidavit evidence of the father, about the father’s involvement with the child during the cohabitation of the parties.
In our view, from what has been already discussed, it is apparent that the learned Magistrate addressed each of those issues. In addition, the following passages demonstrate that Fleming M was well aware of the parties’ respective cases. In discussing “The issues between the parties”, he said:
The husband contends that both parents are good parents. He admits that he has made mistakes in the past and seeks to redress those errors. He believes that he can communicate effectively with the mother and that they can both act genuinely in the child’s best interests. He relies on his attendances at various counselling courses to show how he has attempted to address his (admitted) inability to cope with the marital breakdown. He also cites his past and present involvement with the child in support of his contention that there should be an equal and shared parenting order in this case. He also says that this should equate to equal time for [B] with each parent.
The wife, however, is not so disposed. She believes that the husband has been abusive in the relationship and that he has not been able to accept the breakdown of the marriage. She further believes that he lost focus and either deliberately or inadvertently has involved the child in this separation to the detriment of [B]. She also contends that they do not have the ability to communicate effectively in matters involving [B]. She believes the husband’s actions “speak louder than words” and that for the sake of the child and her (the childs) stability she, the mother, should have the sole parental responsibility for the child and the child to spend a significant period of time with the father but certainly not on an equal basis.
In relation to the issue of the mother’s attitude to the father, and, by necessary implication, the father’s criticism of that Fleming M also concluded:
The wife impressed as a conscientious mother. If one were to be critical it could be said that perhaps she was overly protective of [B] but believe that observation could be levelled at both parents. In her evidence she indicated that she attempted to alert the husband of the problems in the marriage well before separation. She indicates that her lack of communication with the husband after separation was designed to ensure a disentanglement from the relationship. She testified that he would not accept the breakdown of the marriage and she made it clear that she had to be pointed so as to keep him at arms length. Overall she impressed as a credible witness. In some ways her exchanges with the husband appear to be dictatorial but that could be explained, as she would say, in attempting to distance herself from her husband so as to make him realise that the marriage was at an end.
We earlier noted the learned Magistrate’s conclusion about the father’s contention that he had left behind any errant behaviour. In support of that conclusion, he added:
…The fact that he did not apologise to the wife in relation to the website and that the site was only removed after a letter from her solicitors is clear proof of this fact. This is especially so given that this occurrence happened early this year after he had had extensive counselling last year to help him cope with the breakdown of the relationship. (emphasis added).
In our view, the discussion by the learned Magistrate of the evidence relating to all relevant issues was sufficient; “the path by which the result has been reached” is apparent. We find no merit in arguments to the contrary.
Were the reasons cogent?
The suggestions that the reasons lacked cogency fell into two categories:
(i)That findings about the positive capacities of the father were inconsistent with negative findings about him and with the final result; and
(ii)That some ultimate conclusions were unsupported by preceding findings that were a necessary foundation for those ultimate conclusions.
In relation to the first category about inconsistent findings, the essential argument was that, having found that both parents had had a significant involvement with the child before and after separation, that both parents were “good parents”; that both parents encouraged and facilitated a close relationship with the other parent; that there was no question about their ability to provide for the child in any sense and that each parent had the capacity to spend either equal time or a substantial and significant time with the child, it was inconsistent for Fleming M to make an order for other than equal time or something close to that.
We think the answer to this proposition clear. The specific findings that Fleming M made against the father are clearly qualifications or subtractions, from the general findings in his favour. We note, for example, that in the passage earlier quoted, that there was no concern that the child would be subject to any physical or psychological harm with either parent, the learned Magistrate interpolated, “(given the right orders)”.
As to the second reason for which Mr Jones contended that the reasons lacked cogency, namely that ultimate conclusions lacked necessary foundations, Mr Jones submitted that the learned Magistrate provided only two reasons for refusing to order an equal sharing arrangement. We do not accept that the learned Magistrate gave only two reasons for the result. We earlier quoted the six numbered paragraphs with which he supported the result, and they contain more than the two reasons identified by Mr Jones.
The second reason for which Mr Jones suggested that Fleming M had accepted the mother’s proposal was that it allowed the wife to spend quality relaxation time with the child, but the learned Magistrate failed to discuss what that might mean in this case.
The learned Magistrate had earlier set out in full each party’s proposal. That of the father involved changeovers each weekend. The wife’s proposal allowed her a weekend with the child each fortnight. We think it likely that the learned Magistrate was referring to this difference, but even if the remark is unexplained it is not indefensible and to regard it as detracting from the sufficiency or cogency of the reasons overall would be pernickety.
Mr Jones submitted that the first reason that Fleming M gave to support the result was to “provide for a more stable environment” for the child. Mr Jones argued that there was no evidence cited or other finding made which would displace his Honour’s previous positive findings or which would indicate that the child’s situation had been unstable. Indeed, he said, given those positive findings it was incumbent upon his Honour to provide reasons to justify anything other than equal time. Moreover, there was also no evidence cited or other finding made which would indicate that the child had been adversely affected in the past or was likely to be adversely affected in the future, with implementation of the husband’s proposal.
In some respects, this argument matches that earlier considered, and rejected, about inconsistency between positive and negative findings. In so far as the asserted lack of support for the conclusion that the mother’s proposal would provide a more stable environment, our view is that this is clearly an inference drawn from the findings about the negative aspects of the father and his parenting in particular. We consider it an available inference.
Mr Jones put other arguments.
In his written submissions, he asserted that findings about the father’s “misconduct” were unsupported. As we indicated he did not press argument in this respect. In respect of a particular incident, the “TV remote incident”, Mr Jones argued that Fleming M ought have drawn conclusions against the mother. But Mr Jones has put nothing to us to persuade us that the findings in these regards were not open to the learned Magistrate.
In his written submissions Mr Jones also suggested that, while initially correctly addressing the parties’ “current and future capacity to communicate”, Fleming M subsequently erred in describing that which was required as “an ability to properly communicate”. We see no error in this; the latter concept is merely an aspect of the former.
Further evidence
Mr Jones contended that the further evidence (of SMS text messages sent by the mother to the father) would have been relevant to the learned Magistrate’s conclusions about the father based upon the content of SMS messages sent by him to the mother. As to those latter mentioned texts, the learned Magistrate found:
The communication book and the SMS texts (both of which were exhibited in this case) display, in the court’s view, an inability of these parties to effectively communicate. Whilst the majority of the communication book shows a degree of civility between the parties the SMS texts demonstrate, on the husband’s behalf, in the court’s view obsessional conduct.
In CDJ v VAJ (1998) FLC 92-828, McHugh, Gummow and Callinan JJ said of the power of this Court to receive further evidence:
109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. …
…
117. The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. …
…
151. Wide as the discretion conferred by s 93A(2) undoubtedly is, apart from such truly exceptionable cases, more is required for its exercise and the ordering of a new hearing than a real chance that the order under appeal does not serve the best interests of the child. …
Mr Jones seemed hesitant about framing his submission so firmly as to say that the further evidence demonstrated that the findings of the learned Magistrate just quoted were erroneous (let alone that the orders under appeal are erroneous), although we will take him as suggesting that the further evidence meets that test.
Mr Castiglione, Queens Counsel for the mother, gave a context to the issue at trial of SMS texts between the parties, with which description Mr Jones took no exception. On 2 May 2007 the father became aware that the mother intended to use the text of his SMS messages in the trial. The text of the father’s SMS messages was introduced during the evidence in chief of the mother on 4 May 2007. The affidavit of the solicitor for the father supporting the application for leave to adduce the further evidence discloses that there was no objection to the mother relying upon the text of the SMS messages from the father. The mother was not cross-examined about the father’s SMS messages. The father was cross-examined about them. In re-examination of the father, the matter of SMS messages from the mother was referred to and no application was made to tender texts. While there is reference in his solicitor’s affidavit to the father being unable prior to the trial, commencing the next morning, to obtain a print-out of the mother’s SMS messages to him, there is no other material relating to any subsequent incapacity to obtain those messages.
We were not taken to any particular message by the mother to demonstrate that had it been in evidence the conclusion which the Magistrate reached, based upon the father’s messages, would be untenable. Mr Jones did not argue and there is nothing to demonstrate, that the learned Magistrate reached his conclusion on a misapprehension that the mother did not respond to, or initiate, any SMS exchanges. There is thus nothing to show that the content of the father’s messages, while it supported the conclusions of the Magistrate, would not have continued to provide that support simply because the mother sent messages herself. In short, we are not satisfied that the admission of the material would demonstrate that the conclusion of the learned Magistrate was erroneous.
Having regard to all of these circumstances, we refuse the application to adduce further evidence.
Proposed further ground of appeal
The ground that Mr Jones sought to add was:
The order of the learned trial Magistrate that the child spend four nights per fortnight with the husband from Friday after school until Tuesday before school was not, in the circumstances, substantial and significant and in the making of such order his Honour thereby erred in law.
Mr Castiglione opposed the grant of leave to amend. Mr Jones conceded that at trial the father did not argue that the mother’s proposal was not substantial and significant time for the child to spend with the father. Further, as earlier seen, there had been no alternatives put to the Magistrate other than what he identified as the position of each party. In these circumstances, to entertain this ground of appeal would have about it elements of hypotheses. We decline to grant leave.
Conclusion
It follows from the opinions expressed that the appeal should be dismissed.
Costs
Mr Jones presented no argument against the proposition that if the appeal failed the father should pay the mother’s costs. Having regard to what we know of facts relevant to factors to be considered under s 117(2A) of the Act, we consider the result of particular significance and as justifying an order for costs.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 21 February 2008
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