Dansey & Dansey

[2021] FedCFamC1A 71

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dansey & Dansey [2021] FedCFamC1A 71  

Appeal from:

Dansey & Dansey [2021] FamCA 462;

Dansey & Dansey (No. 2) [2021] FamCA 631

Appeal number(s):

EAA 73 of 2021;
NAA 5 of 2021

File number(s):

SYC 3614 of 2021

Judgment of:

TREE, RIETHMULLER & CAMPTON JJ

Date of judgment:

19 November 2021

Catchwords:

FAMILY LAW – APPEAL – PARENTING – Appeal from interim parenting orders – Whether the primary judge erred in his assessment of findings as to unacceptable risk – Interim hearing – Contested allegations – Weight challenges – Whether the primary judge gave adequate reasons – Whether the primary judge failed to afford natural justice – No grounds of appeal challenging the parenting orders established – Appeal dismissed – Parties to file submissions as to costs.

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the further evidence does not demonstrate any error by the primary judge – Financial statements by each party admitted in relation to costs.

Legislation:

Family Law Act 1975 (Cth) ss 60CC(2A), 60CG

Family Law Rules 2004 (Cth) r 5.09

Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Mallory & Mallory [2019] FamCAFC 221

Salah & Salah (2016) FLC 93-713; [2016] FamCAFC 100

Sun Alliance Insurance Ltd v Massoud (1989) VR 8

Number of paragraphs:

47

Date of hearing:

3 November 2021

Place:

Sydney

Counsel for the Appellant:

Mr Todd

Solicitor for the Appellant:

Burgess Family Law

Counsel for the Respondent:

Dr Barnett

Solicitor for the Respondent:

Pearson Emerson Family Lawyers

Counsel for the Independent Children's Lawyer:

Mr Gould

Solicitor for the Independent Children's Lawyer:

G & D Lawyers

ORDERS

EAA 73 of 2021;
NAA 5 of 2021
SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DANSEY

Appellant

AND:

MR DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	TREE, RIETHMULLER & CAMPTON JJ
DATE OF ORDER:	19 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The appellant’s Application in an Appeal filed 12 October 2021 be dismissed.

2.Save that he have leave to rely upon his financial statement dated 18 October 2021, the respondent’s Application in an Appeal filed 19 October 2021 be dismissed.

3.The appellant have leave to rely upon her financial statement dated 19 October 2021.

4.Appeal EAA 73 of 2021 be dismissed.

5.No later than 4.00 pm on 26 November 2021 the appellant make file and serve any material and submissions as to costs.

6.No later than 4.00 pm on 3 December 2021 the respondent make file and serve any material and submissions as to costs.

7.No later than 4.00 pm on 8 December 2021 the appellant make file and serve any material strictly in reply to any material filed under Order 6 hereof.

8.Otherwise the question of costs be reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dansey & Dansey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE, RIETHMULLER & CAMPTON JJ:

INTRODUCTION

1. By Amended Notice of Appeal filed 7 September 2021, Ms Dansey (“the mother”) appeals from interim parenting orders made by a Family Court judge on 30 June 2021. Mr Dansey (“the father”) and the Independent Children’s Lawyer (“ICL”) resist the appeal.

2. For reasons which follow, the appeal will be dismissed.

   BACKGROUND

3. The parties were married in 2008 and separated in May 2021. There are two children of the relationship, a girl and a boy, presently aged nine and eight years old respectively.

4. Prior to May 2021, the parties and children lived in Sydney in the former matrimonial home.

5. On 10 May 2021, the mother relocated with the children to G Town without notice to the father. The mother says she did this after receiving advice from a counsellor in a domestic violence service and from her solicitor.

6. On 13 May 2021, the father was served with a provisional Apprehended Domestic Violence Order, which he is defending in Local Court proceedings.

7. On 17 May 2021, the father filed an Initiating Application seeking both interim and final orders, including an order for the children’s recovery back to Sydney.

8. By her Response filed on 3 June 2021, the day before the interim hearing, the mother sought orders that the children live with her and spend no time with the father. In the interim hearing before the primary judge the mother justified those orders on the basis that the father posed an unacceptable risk of harm to the children if he were to spend time with them.

9. On 30 June 2021, the primary judge made the orders the subject of the appeal, including, relevantly, that the children live with the mother in Sydney and spend specified periods of time with the father supervised by the paternal grandparents.

10. On 8 July 2021, the mother filed a Notice of Appeal (subsequently amended) from those orders, along with an application to stay the interim parenting orders made on 30 June 2021 pending her appeal from those orders.

11. On 15 July 2021, an ICL was appointed to represent the children.

12. On 4 August 2021, the primary judge heard the mother’s application for a stay of orders and on 27 August 2021, dismissed it.

13. On 7 September 2021, the mother filed a Notice of Appeal from the order dismissing her stay application, however at the hearing before us, that appeal was dismissed by consent.

    APPLICATIONS IN AN APPEAL

14. The mother and the father have both filed Applications in an Appeal to adduce further evidence. The further evidence comprises affidavits from the mother, father and members of the paternal family, deposing to events which have occurred since the orders of 30 June 2021 and 27 August 2021, along with a financial statement of each of the parties.

15. Apart from her financial statement, the new material now sought to be relied upon by the mother seeks to prove that the paternal grandparents have not strictly supervised the father’s time with the children. It also inferentially appears to suggest that the father may have sexually abused one of the children during his time with them under the 30 June 2021 orders. The father opposes the admission of the mother’s material, but in the event that it is admitted, seeks to rely on material to refute the mother’s claims.

16. Correctly, counsel for the mother conceded that her material does not demonstrate any error by the primary judge, but rather was relevant only upon any re-exercise of the primary judge’s discretion. As we have found that the appeal fails no occasion for re-exercise arises. The admission of that material is therefore rejected. It follows the father’s material refuting the mother’s claims will not be admitted either.

17. The parties’ financial statements may be relevant to the question of costs, and will be admitted into evidence.

    LEAVE TO APPEAL

18. In her Notice of Appeal, the mother sought leave to appeal the primary judge’s 30 June 2021 orders. As counsel for the father identified, the 30 June 2021 orders, although interim, related to a child welfare matter, and therefore leave is not required. As a result, the mother did not need to press her application for leave.

    THE APPEAL

19. The mother agitates four grounds of appeal in relation to the interim parenting orders. Those orders were the result of the exercise of a discretion. The limits upon appellate interference with such orders is well known and longstanding. In House v The King (1936) 55 CLR 499 (at 504–505) the High Court said:

    The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

    Ground 1 – Approach as to unacceptable risk

20. This ground provides:

    1.The Primary Judge erred in the exercise of discretion under Pt VII of the Family Law Act 1975 (Cth) by:

    a.Failing to consider, apply and make findings directed towards the principles discussed in M v M (1998) 166 CLR 69, and cases such as W and W (abuse allegations: unacceptable risk) [2005] FamCA 892 (Full Court), as regards the existence of, and evaluation about, an unacceptable risk of sexual abuse.

    b.Making the findings that the Primary Judge made at [69], [58] and [51], including as they reflect an incorrect evidential approach which does not accord with the task identified in M v M (1988) 166 CLR 69, and cases such as W and W (abuse allegations: unacceptable risk) [2005] FamCA 892 (Full Court), as regards the existence of, and evaluation about, an unacceptable risk of sexual abuse.

    (As per the original)  

21. At the hearing of the appeal, counsel for the mother appeared to ultimately concede, or at least no longer pressed, this ground. Even if we are mistaken as to that, the ground nonetheless does not enjoy merit.

22. The primary judge’s reasons relating to his assessment of the risks posed by the father include the following:

    MEANINGFUL RELATIONSHIP

    47.…

    48.It is the father’s position that prior to separation he enjoyed a close emotional attachment with the children and that his relationship should be considered as valuable, important and substantial.  The mother does not consider that there is value to the father’s relationship with the children given her reliance upon allegations that the father was physically and sexually violent to her and the children and that neither the father nor any member of his family have anything positive to offer the children.

    51.I am cognisant of the allegations made by each of the parties but I place weight on matters raised by the father leading up to the separation of the parties that at least on first consideration appear consistent with normal interaction between the father and the children.

    THE NEED TO PROTECT THE CHILDREN FROM PHYSICAL OR PSYCHOLOGICAL HARM, ABUSE, NEGLECT OR FAMILY VIOLENCE

    52. Each of the parties raise serious allegations against the other which if established on the balance of probabilities would present as a risk to the children.

    53. Each of the parties have filed a Notice of Child Abuse, Family Violence or Risk.  The father asserts that the children are at risk of emotional or psychological harm occasioned by the disruption caused to the children consequent upon their relocation to H Shire.  The mother alleges that the father has perpetrated family violence and that the children are at risk of serious psychological harm arising from family violence perpetrated by the father upon the mother and his purported aggressive behaviour towards the children.

    54.      The ADVO issued on 13 May 2021 is disputed by the father.

    55. Furthermore, the father denies each and every allegation of the mother.  Her counsel argues that there are significant inconsistencies arising from the mother’s interaction with the father prior to separation and the extent of his involvement with the children when considered against the serious allegations made by the mother that she was the subject of ongoing sexual assault and that the father’s overt aggressive behaviour placed the children at risk.

    56. I am not able to make a finding as to the veracity of the allegations made by the mother and the weight that should be given to the father’s denials.

    57. It is appropriate to err on the side of caution even though such a course does not necessarily satisfy either or both of the parties.  The focus must be steadfastly anchored by a consideration of the children’s best interests.

    58. I do not consider that the weight of evidence in terms of the mother’s allegations pertaining to the father’s conduct in and of themselves speak against a parenting order that would bring the children and the father into physical contact.  Any order made however, should endeavour to ameliorate any perceived risk.

    …

    FAMILY VIOLENCE

    69. I bring to account the allegations made by the mother in respect of the father being the perpetrator of family violence.   As discussed, I am not able to make a finding and at this stage consider that the father’s rejection of the allegations are as open to a finding as are the mother’s allegations of sexual assault and family violence perpetrated by the father.

    CONCLUSION

    70. I find that it is in the best interests of the children that they maintain a meaningful relationship with the father.  Further, I consider that an order should be made which restores the children spending time with the father but in circumstances where the Court can be satisfied the risk to the children is ameliorated.

    …

    76. For those reasons I consider that the orders sought by the father that the children spend time with him, supervised by the paternal grandparents, are in the best interests of the children and should be promoted.

    (Emphasis added)

23. The mother says that in undertaking the task of risk assessment, “the Court must give consideration to the facts of the case to decide whether or not those facts could reasonably be said to raise an unacceptable risk of harm” (mother’s Summary of Argument filed 5 October 2021, paragraph 18). However, that is precisely what the primary judge did at [51], [53], [57], [58], [69] and [70]. Whilst his Honour could have expressed [58] in terms of not being satisfied that the father posed an unacceptable risk in spending any time with the children, and expressed [70] and [76] in terms that supervision by the paternal grandparents sufficiently mitigated such risk as the father may pose, that is nonetheless the only possible meanings of those paragraphs.

24. The denial of serious allegations of risk to children does not mean that in interim proceedings, a court can thereafter ignore them (Salah & Salah (2016) FLC 93-713 at [36]–[40]), however that is not what the primary judge did here. The primary judge identified that risks arose on the material, the difficulty in making findings at an interim hearing, and the importance of addressing those risks. As the primary judge noted, on the affidavit material of the parties, there was little basis on the evidence then available (without the benefit of cross-examination) for preferring either the mother’s allegations or the father’s denials. Indeed, to the extent that there was any notable deficiency in his Honour’s engagement with the evidence, it was his Honour’s failure to refer to an interview of the elder child (whom the mother alleged was at risk of sexual abuse from the father) by the relevant New South Wales authorities, in which she denied any wrongdoing by the father (Exhibit 3). However, that failure only advantaged the mother.

25. Moreover, risk is not the only, or necessarily the determinative, factor at play in the crafting of appropriate interim parenting orders, but rather it remains one factor to be taken into account (noting ss 60CC(2A) and 60CG of the Family Law Act 1975 (Cth)) in the determination of what is in the children’s best interests (see, for example Mallory & Mallory [2019] FamCAFC 221 at [78]).

26. Correctly, as the father says, in the final analysis, the gravamen of the mother’s complaint under this ground is really that the primary judge’s error was that he “failed to place greater weight upon the [m]other’s allegations” (father’s Summary of Argument filed 19 October 2021, paragraph 37). Such challenges face a very high bar (Gronow & Gronow (1979) 144 CLR 513 at 519) which has not been surmounted here.

27. Ground 1 is without merit.

    Grounds 2 & 4 – Adequacy of reasons

28. These grounds provide:

    2.The Primary Judge erred in respect of the obligation to state reasons.

    …

    4.The Primary Judge failed to give reasons as to why the Paternal Grandparents are appropriate supervisors of time between the Father and the children in circumstances where the Appellant contended that they were not.

    (As per the original)    

29. The obligation to provide adequate reasons is well established. In Bennett and Bennett (1991) FLC 92-191, the Full Court adopted the test articulated by Gray J in Sun Alliance Insurance Ltd v Massoud [1989] VR 8 as follows:

    The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will, in my opinion, be inadequate if:

    (a)The appeal court is unable to ascertain the reasoning upon which the decision is based; or

    (b)       Justice is not seen to have been done.

    The two above stated criteria of inadequacy will frequently overlap. If the primary judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.

30. In our view his Honour’s path of reasoning in relation to risk is reasonably clear.

31. First, at [51] the primary judge noted that the father’s explanation of the mother’s allegations was consistent with his allegedly improper conduct being benign.

32. Further, whilst it is true that at [69], the primary judge said that “the father’s rejection of the [mother’s] allegations are as open to a finding as are the mother’s allegations” nonetheless, the primary judge imposed a regime of supervision of the father’s time with the children. That can only have been in response to a risk of harm posed by the father. It is therefore not correct to say, as counsel for the mother contended, that the father’s denials neutralised the mother’s allegations; plainly the primary judge afforded them real weight. Particularly, the primary judge was plainly satisfied that, even though the father’s conduct may have been benign, absent being able to determine the veracity of the mother’s allegations, nonetheless “[i]t is appropriate to err on the side of caution” (at [57]) and thus the level of risk posed by the father justified supervision. Although not deploying the term “unacceptable risk” to the father spending unsupervised time with the children, it is readily apparent that the primary judge concluded that supervision sufficiently mitigated such risk as he posed.

1. Ground 4 relates to the adequacy of exposure of reasoning for the children’s time with the father being subject to supervision by the paternal grandparents. The primary judge acknowledged the mother’s concerns about the paternal grandparents at [19]–[21] as follows:

   19. The mother considers that she has been uncomfortable leaving the children in the care of either the paternal grandparents or the father’s brother.

   20. The mother lists her concerns at paragraph 68 of her affidavit filed 3 June 2021.  The concerns can be summarised as follows:

   (1) That the paternal grandfather has anger management issues in respect of disciplining children and that the mother believes that on at least one occasion the paternal grandfather has hit Y;

   (2) When four years of age Y declared that he wanted to be a vegetarian, the paternal grandparents ignored his wishes and would force him to eat meat;

   (3) That all members of the father’s family would “inflict arbitrary violence against the family dog”;

   (4) That the father’s brother would consume alcohol to excess, become aggressive and demonstrate aggressive behaviour towards the children; and

   (5) The father’s brother would make inappropriate comments to X such as “oh it’s lucky you’re pretty.”

   21. It is conceded that the paternal grandparents played a significant role in caring for the children.  The father disputes the mother’s allegations made in respect of his family.

   (Footnotes omitted)

2. Counsel for the mother conceded the accuracy of the primary judge’s recitals of the mother’s concerns. These concerns must be seen in the context of the significant contact that the children have had with the grandparents over the years, as noted by the primary judge, saying:

   65.Whatever may have been the mother’s misgivings about the paternal grandparents, it is not contested that their involvement with the children was significant and on occasion spontaneous as highlighted by their attendance to take the children to school on 10 May 2021.

3. Even if the mother’s allegations were true, and the father’s denials of them false, how they speak to the paternal grandparents’ disqualification as supervisors is unclear to us, in that none of them suggest any likely lack of vigilance in supervising the father.

4. However leaving that aside, it is plain that the primary judge was satisfied that the children would be safe from such risks as the father posed if his parents were supervising his time (at [50] and [58]). Thus his Honour’s reasoning is able to be readily discerned, and is hardly surprising given the unchallenged findings relating to the paternal grandparents extensive involvement in the children’s lives pre-separation (at [17], [21] and [64]).

5. Under this ground the mother also seeks to obtain some leverage from the failure of the father to call evidence from the paternal grandfather, the failure of the paternal grandmother’s evidence to address the mother’s allegations against her, and the father’s bare denials of the mother’s allegations generally. However the affidavit of the mother which raised these matters only filed at 2.51 pm on the day before the hearing before the primary judge, the same day that the paternal grandmother’s affidavit was sworn and filed. Until the mother’s affidavit was served there appeared to be no need for an affidavit from the paternal grandfather, in light of the paternal grandmother’s detailed affidavit and the then applicable r 5.09 of the Family Law Rules 2004 (Cth), prohibited evidence which can be given by a party, from being given by another witness.

6. Whilst the paternal grandmother did not have the mother’s affidavit to answer directly, she set out detailed evidence of an extensive and loving relationship with the children that was entirely inconsistent with the claims of the mother, including:

   9. The family dog…lives at Suburb D with us. The children adore [the family dog] and are very attached to him. They enjoy taking him for walks and playing with him. He often sits on the lounge with the children while they are watching TV. I have noticed on occasions that [the girl] has snuck [the family dog] into her bedroom at night when the children are staying overnight with me and [the paternal grandfather].

   …

   11. From the time [the girl] started kindergarten in 2017, the children have spent at least one night each week at our home. Each Thursday, [the paternal grandfather] and I pick up the children from school and take them to swimming lessons… .After their lessons we take the children back to our home for dinner, and get them ready for bed. Often we play games or watch some TV before dinner. Sometimes, [the paternal uncle] and [his partner] will join us for dinner on Thursdays. The children also have a close relationship with [the paternal uncle] and [his partner], who often bring home small presents and toys for the children, and take them out to see movies or on day trips during the school holidays. [The children] have also had sleepovers at [the paternal uncle] and [his partner’s] house.

   12. When they stay with us, the children each have their own bedroom. At bedtime, the children and I climb into [the girl’s] queen-size bed in her bedroom and we take turns reading a different book together. [The girl] will normally pick the book with the largest pages and the most words, so we can read longer. Recently their favourite books have been Finding Nemo, The Fantastic Mr Fox and Enid Blyton’s, The Enchanted Woods. Once we finish reading, [the boy] goes into his own bedroom to sleep by about 8pm. Sometimes [the boy] falls asleep as we are reading and I carry him to his bed. 

   13. In the mornings, the children are usually up at 5.30am with a lot of energy. [the paternal grandfather] and I make breakfast for the children. Their favourite meal at the moment is scrambled eggs, toast and some fruit. Then we get the children dressed and make sure they have brushed their teeth. I pack their bags with snacks for morning tea and order each child’s chosen lunch through a Flexischools app, as a weekly treat.

   14. We normally put [the family dog] in the car so the children can walk him into the school gate and show him off to their friends. Prior to COVID, [the paternal grandfather] and I would wait with the children until the school bell rang and they went to their first class. Since COVID restrictions have been in place, we are only able to go as far as the school gate. From there we watch them walk safely into the school grounds with the other arriving children…

7. The affidavit from the paternal grandmother was not able to specifically reply to the mother’s allegations as to sexual assaults, nor the events said to have occurred in the paternal grandparent’s household, as the mother’s affidavit was filed on the same day as the paternal grandmother’s affidavit and these allegations were not contained in the provisional Apprehended Domestic Violence Order documents.  However, the paternal grandmother did address the more general domestic violence allegations of the mother saying:

   27. I understand that [the mother] has made allegations that [the father] has perpetrated family violence against her and the children.

   28.I have not seen [the father] physically discipline the children or either of them.

   29. I have not heard [the father] say anything to the children which I consider to be hurtful, nor have I seen [the father] tease the children or either of them. To the contrary, [the father] is a caring and gentle soul and is conscious of the children’s feelings and warm and empathetic towards them.

   …

   31. Neither [the children] have complained to me that [the father] has hurt them or made them upset.

   32. I have not witnessed [the father] committing any form of family violence towards [the mother], nor has [the mother] ever complained to me of any behaviour by [the father] which might constitute family violence. To the contrary, [the father] and [the mother] always speak to each other respectfully. [The father] and [the mother] don’t raise their voices when they speak to each other. [The father] usually asks [the mother] first what she thinks, what she would like to do, and defers to her when a decision needs to be made. I have noticed [the mother] has a tendency to ignore [the father] when he asks her a question, so he has to ask her the same question a couple of times. Despite that, I have not seen [the father] get aggressive or hostile towards [the mother] when she ignores him, but instead [the father] remains calm and patient.

8. Whilst the paternal grandmother’s affidavit does not directly traverse the allegations of the mother, the affidavit provides evidence of a caring and protective relationship between the grandparents and the children that is quite inconsistent with the tenor of the relationship depicted by the mother in her affidavit.  Thus, whilst the primary judge did not have an affidavit from the paternal grandparents that directly traversed all of the mother’s most recent allegations, his Honour did have affidavit material to the effect that the paternal grandparents have a close and protective relationship with the children. 

9. Finally, the mother complains that the reason for the primary judge “rejecting” her evidence about the paternal grandparents cannot be discerned. However, it is not correct to say it was rejected, but rather the primary judge noted it was disputed (at [21]). Given his later citation of authority acknowledging the restraints on making findings of fact in an interim hearing (at [34]), it was not incumbent upon his Honour to then go on to say that he therefore could not find those allegations were established.

10. Grounds 2 and 4 both fail.

    Ground 3 – Denial of natural justice

11. This ground provides:

    3.The Primary Judge failed to engage in a meaningful way with the Appellant’s case on family violence and, as such, made an error in the nature of a denial of procedural fairness.

    (As per the original)

12. Ultimately, this ground was not separately pressed to Ground 1. That decision was soundly made. In discussing Ground 1 we have set out why the primary judge sufficiently addressed the question of risk to the children, to the extent that the inability to resolve the conflict between the parties’ evidence permitted him to.  

13. Ground 3 fails.

    OUTCOME

14. No ground of appeal has been successful, and hence the appeal must be dismissed.

    COSTS

15. No matter what the outcome of her appeal, the mother sought an opportunity to put the terms of an offer she made to the father (and perhaps the ICL as well) before the Court, and to make submissions as to costs based upon it. This course was not strenuously opposed by either the father or the ICL. We will order a timetable for the exchange of material and submissions as discussed with the parties at the hearing of the appeal.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Tree, Riethmuller & Campton.

Associate:

Dated:       19 November 2021