DARROW & DARROW - [2015] FamCA 597

FAMILY COURT OF AUSTRALIA

DARROW & DARROW

[2015] FamCA 597

FAMILY LAW – PRACTICE & PROCEDURE – Evidence – Discussion of adversarial expert evidence – Discussion of the Family Court Rules – Where it was not established it was necessary in the interests of justice to permit the mother’s reliance upon the adversarial expert evidence

FAMILY LAW – CHILDREN – Interlocutory Application – Best Interests – Where the child’s continuing derivation of benefit from his meaningful relationships with both parents was the only primary consideration in this case – Where the evidence of the father’s use of illicit drugs and the potentiality for this to affect his proper care of the child was relatively weak – Where the child needs to retain his strong relationship with the father – Where it was common ground the child should continue to live with the mother – Child to spend substantial time with the father – Where no interim order made in respect of parental responsibility, given the existent issue about the occurrence of abuse and family violence

Evidence Act 1995 (Cth), s 128
Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61C, 61DA, 62B, 65AA, 65DA, 65DAA, 65D, 121
Family Law Rules 2004 (Cth), rr 1.07, 5.09, 15.42, 15.51, 15.52, 15.62, 15.63

Harrington v Lowe (1996) 190 CLR 311
M v M (1988) 166 CLR 69
Northern Territory of Australia v GPAO (1999) 196 CLR 553
U v U (2002) 211 CLR 238

APPLICANT:

Mr Darrow

RESPONDENT:

Ms Darrow

FILE NUMBER:

SYC

416

2015

DATE DELIVERED:

14 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

14 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

Order 1 made on 27 April 2015 is discharged.
The child B, born … 2011, (“the child”) shall live with the mother.
The parties shall take all reasonable steps to ensure that the child spends time with the father, unless otherwise agreed:
(a)   During school or preschool terms:
(i)     From the conclusion of school or preschool each Tuesday until the commencement of school or preschool each Wednesday; and
(ii)    From the conclusion of school or preschool each Friday until 5.00 pm on Saturday.
(b)During school or preschool holiday periods:
(i)     For the first half of the autumn, winter and spring holidays;
(ii)    For one week commencing at 3.00 pm on Christmas Day; and
(iii)     For one week commencing at 3.00 pm on 8 January.
Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the child communicates by Facetime, Skype or telephone:
(a)With the father each Wednesday and Sunday at 6.30 pm while the child is living with the mother; and
(b)With the mother each Monday and Thursday at 6.30 pm while the child is spending time with the father during school or preschool holiday periods.
The parties are restrained from causing or permitting their hair to be dyed, bleached, chemically treated or otherwise treated in such a way as to interfere with the integrity of hair follicle tests carried out pursuant to Orders 2 to 5 inclusive made on 27 April 2015.
Pursuant to 65DA(2) and pursuant to s 62B of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Otherwise:
(a)The Amended Application in a Case of the father dated 10 July 2015 is dismissed;
(b)The Amended Application in a Case filed by the mother on 7 July 2015 is dismissed; and
(c)Any and all other outstanding interim applications are dismissed.

NOTATION

A.Orders 2 to 5 inclusive made on 27 April 2015 continue to operate.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC416 of 2015

Mr Darrow

Applicant

And

Ms Darrow

Respondent

EX-TEMPORE

REASONS FOR JUDGMENT

These proceedings concern conflicting parenting applications under Part VII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant father and the respondent mother in respect of their only child, a son, who is now four years of age.
The proceedings were only commenced in January 2015, but already this is the second interim dispute between the parties entertained by the Court.
In April 2015, Rees J made interim orders, which suite of orders required the parties to undertake hair follicle drug testing and CDT alcohol testing on a random basis.
A subsequent positive hair follicle drug test of the father precipitated two events: first, the mother unilaterally severed all face-to-face interaction between the child and the father, other than on terms dictated by her; and secondly, both parties contemporaneously filed Applications in a Case to change the interim orders made in April 2015.
The father wants the existing orders endorsed, subject to a specific amendment to provide for the child to spend more time with him in school holiday periods. He also wants make-up time for that lost over the last few weeks, together with a retinue of ancillary orders.
The mother now wants the time spent by the child with the father re-structured so that there are no overnight stays and all other visits are the subject of professional supervision. She also wants express provision made in respect of school holiday periods and a number of other ancillary orders.

Proposal and evidence of the father

The father pressed for the orders set out in his Amended Application in a Case, dated 10 July 2015.
In support of that proposal, the father relied upon two affidavits prepared by him – one filed on 3 July 2015 and the other sworn on 10 July 2015.
Despite the Family Law Rules 2004 (Cth) (“the Rules”) only permitting the father’s reliance upon one affidavit to prosecute his interim application (r 5.09(a)), with the consent of the mother, leave was granted for him to rely upon two.
Leave was not granted to the father to rely upon the affidavits of four other witnesses since, on the submissions made by the father’s counsel, the evidence they each gave could be given by the father himself (r 5.09(b)). In addition, their bare opinions about the quality of the father’s parenting capacity were unlikely to influence any interlocutory determination of parenting orders. The Rules require the court to conduct the litigation before it in a way that is fair, just and timely, proportionate to the issues and their complexity, and gives an appropriate share of resources to all litigants (rr 1.07(a), 1.07(c), 1.07(e)). That exhortation to efficiency would be frustrated by allowing the father to rely upon the supplementary witnesses.
The father additionally relied upon a series of documents pertaining to his financial circumstances (which were tendered and marked Exhibits F1, F2 and F3) and the Child Responsive Program Memorandum prepared by the Family Consultant on 4 June 2015.

Proposal and evidence of the mother

The mother pressed for the orders set out in her Amended Application in a Case, dated 7 July 2015.
In support of her proposal, the mother relied upon her affidavit filed on 3 July 2015, her affidavit affirmed on 13 July 2015, and two other documents that pertained to the father’s financial circumstances (tendered and marked Exhibits M1 and M2).
Leave was not granted to the mother to rely upon her third affidavit, which was the first one she filed on 27 April 2015, prior to the orders made by Rees J that same day.
The mother also sought, but was denied, leave to rely upon the affidavit of

Dr C, filed on 9 July 2015, the reasons for which are as follows.
To avoid the problems of partiality potentially caused by parties’ reliance upon adversarial witnesses, Part 15.5 of the Rules sets out the regime for the procurement of expert evidence. Its overriding purpose is to ensure that, if practicable and without compromising the interests of justice, any necessary expert evidence should be given by a single expert (r 15.42(c)). However, a party may apply to adduce evidence from an adversarial expert if it is necessary in the interests of justice (r 15.42(e)).
Dr C is an adversarial expert witness. His area of expertise is toxicology. The mother procured his evidence unilaterally. Until the issue was raised at the hearing, she did not apply for the Court’s permission to adduce his evidence. Her oral application to do so was opposed by the father. Any application for permission to adduce adversarial evidence should be supported by an affidavit containing prescribed information (rr 15.51(1) and 15.52). No such affidavit was filed and it was clear from submissions that some of the required information would not support the mother’s case anyway. In particular, no attempt was made by the mother to confer with the father over the appointment of a single expert toxicologist (r 15.52(2)(a)).
The mother severed the child’s face-to-face interaction with the father on 1 July 2015, filed her Application in a Case and affidavit on 3 July 2015, instructed

Dr C on 7 July 2015, and obtained his report on 10 July 2015.
No objection was taken by the father to the expertise of Dr C or to the form or contents of his report (rr 15.62, 15.63), but that of itself does not warrant its reception into evidence.
The mother made three submissions in support of the admissibility of

Dr C’s affidavit.
The first was that it was needed urgently, but Dr C’s report was procured within three days. No explanation was proffered as to why a single expert’s report could not have been procured with just as much haste.
The second was that the best interests of the child demanded it. Such a submission misconceived the distinction between the admissibility of evidence and, if admitted, the use to which it is put and the weight attributable to it. The paramountcy of the child’s best interests is not a principle that affects anterior procedural determinations about the admissibility of evidence, either by reference to the Evidence Act1995 (Cth) or the Rules (see Northern Territory of Australia v GPAO (1999) 196 CLR 553).
The third was that the Rules were invalid to the extent that they operated to preclude the mother’s intended reliance upon the affidavit of Dr C. The mother’s senior counsel conceded he had not come to Court prepared to argue that point so it remained a bare proposition without elaboration. In such circumstances, the submission is rejected. The Rules do not appear to venture beyond statutory power and do not appear inconsistent with statutory provisions (see Harrington v Lowe (1996) 190 CLR 311). Almost every superior court of record in the country now operates under rules which emphasise the desirability of use of single experts in preference to adversarial experts. For example, the Federal Court of Australia has similar rules in Part 23 of the Federal Court Rules 2011 (Cth) and the NSW Supreme Court has similar rules in Part 31 of the Uniform Civil Procedure Rules 2005 (NSW).
No submission advanced by the mother established that it was necessary, in the interests of justice, to permit her reliance upon Dr C’s evidence (r 15.42(e)).
Conversely, there were several reasons that militated against reception of

Dr C’s evidence, apart from the fact that the Rules did not automatically permit it.
The mother perceived the significance of Dr C’s evidence to be its contradiction of the father’s admission of his use of cocaine once while in the USA on 27 March 2015. Even if Dr C’s evidence was accepted at its highest, it would only prove the father’s evidence on that issue was unreliable, not that he was an incompetent parent.
However, the evidence of Dr C was not so categorical when analysed closely. To reach his conclusion, he made an assumption that the father ingested between 50 and 200 milligrams of cocaine on the single occasion admitted by the father. That assumption, apart from covering a relatively broad band, may not have been correct because the father made no admission about either the precise or approximate amount of the drug he used. Even if the assumption was valid, the doctor gave no reasoned explanation as to how use of different amounts within that bandwidth – which varied by a factor of four – bore upon his ultimate conclusion.
The ultimate conclusion of Dr C was expressed differently and confusingly. He said the test result proved the father used cocaine “frequently”, “regularly”, on a “number of occasions”, and on “more than a single occasion”. However, significantly, in answer to the express question “what is the likely frequency of the father’s cocaine use?” Dr C answered:
It is not possible to provide an opinion on the frequency of cocaine use based on the hair test.
Notwithstanding the expert’s concession about his inability to express an opinion about the frequency of the father’s cocaine use, which went to the nub of the issue, the tenor of his evidence was that it was unlikely the father’s admission to ingestion of cocaine only once on 27 March 2015 was true. His evidence was, therefore, controversial and because of the nature of interlocutory proceedings, Dr C was unavailable for cross-examination. The father was, therefore, unable to test the reliability of the expert evidence which the mother regarded as crucial.
The drug-testing orders made in April 2015 continue to operate. The mother may make further random demands of the father for drug testing. There will be ample opportunity for a single expert witness to be retained in due course to comment upon the meaning of the father’s past and future test results.
As was the case for the father, the mother was denied leave to rely upon the affidavits of four other lay witnesses, the evidence of whom did not materially advance the mother’s case.

Background

The father deposed the parties began their de facto relationship in April 2004, but the mother deposed they only began cohabitation in November 2010. Regardless of the duration of their relationship, it certainly ended in May 2014.
Their only child, a son, was born in 2011.
After the parties’ separation in May 2014, I impute the child lived predominantly with the mother. Arrangements for the child’s care were consensual until January 2015, when the father commenced these proceedings.
The father sought final orders for equal shared parental responsibility and for the child to live with the parties for equal time on weekly rotations.
The mother now seeks final orders for the child to live with her and to spend time with the father for one day and one afternoon each week. Her Amended Response contains no proposal for the allocation of parental responsibility for the child.
An interim hearing was conducted before Rees J on 27 April 2015. Relevantly, her Honour ordered that the child should spend time with the father on two occasions each week – on Tuesday nights and then again from Friday afternoon to Saturday afternoon. No interim order was made by her Honour about with whom the child would live, although inferentially that was to be the mother. Nor was any order made in respect of the child’s parental responsibility. Her Honour also made some further orders, with the parties’ consent, requiring them to submit to random drug testing.
The father did his first random drug test pursuant to a demand made by the mother on 28 April 2015. The evidence is unclear whether the test was done on 30 April 2015 or 8 May 2015. The result was negative, but the mother suspected the test was carried out on the father’s recently dyed hair and the dye disturbed the integrity of the test.
The father did a second random drug test, but the evidence is inconsistent as to whether he was tested on 18 or 22 May 2015. The mother apparently made her demand for the test on 14 May 2015. The test was apparently conducted on a sample of pubic hair instead of a strand of hair from the father’s head. The test result was positive for both cocaine and benzoylecgonine. The test result was not released to the parties until 1 July 2015. The father attributed the positive cocaine result to his use of cocaine in the USA on 27 March 2015. The father attributed the positive result for benzoylecgonine to his ingestion of prescriptive pain medication following his shoulder surgery on 16 June 2015.
The father did a third random drug test on 3 July 2015, but the results of that test are not yet available.
In an effort to demonstrate his abstinence from recent illicit drug use, the father voluntarily submitted to urinalysis on 8 July 2015. That test result was negative, but the test conducted on his urine would not likely have detected any cocaine use more than only a period of hours or days before the sample was taken. Urine tests do not have the same longitudinal value as hair follicle tests.
The mother deposed to her longstanding concern about the father’s:
…excessive alcohol consumption, use of prescriptive medication and use of illegal drugs.
As to the alcohol consumption, there is no evidence to vindicate her fears. The father’s CDT testing on 3 July 2015 showed his alcohol use to be within normal range.
As to his use of prescriptive medication, there is no evidence at all of its improper use by the father. Significantly, Dr C reported to the mother that if the father ingested his prescribed medication as directed, there would be:
…minimal effect upon the father’s cognitive and physical functioning.
In any event, the father deposed he abstained from use of the prescriptive medication, or at least minimised its use, at times proximate to his care of the child.
The issue, therefore, distilled to the father’s use of illicit drugs, and in particular, cocaine. The father deposed his use of cocaine on 27 March 2015 was an isolated event. The mother does not believe him. There is no need to make a factual determination. It would be impossible to do so without the evidence being properly tested anyway.
The father deposed he has never been intoxicated by illicit substances whilst caring for the child. The mother does not believe that evidence either because she considers his reliability is destroyed by his untruthful evidence about only using cocaine once on 27 March 2015.
The Court is generally confined to the determination of interim proceedings on the basis of uncontroversial evidence and any inferences that fairly arise from the body of evidence. Relevantly, the material evidence is as follows:
(a)The parties both told the Family Consultant they used marijuana and cocaine during their relationship.
(b)The mother was unspecific about whether her own cocaine use with the father occurred before or after the birth of the child.
(c)The mother deposed she has no idea of the frequency or extent of the father’s cocaine use since separation.
(d)Even though she had concerns about it, she filed both her Response and an Amended Response in these proceedings proposing that the child spend unsupervised time with the father. Inferentially, she had faith in his parenting capacity notwithstanding her concerns.
(e)Even if the father has used cocaine more than once in the last few months, there is no evidence to fairly permit an inference that his care of the child has been or will be compromised. Such an inference could only flow from evidence about the relative contemporaneity between his illicit drug use and his care for the child, of which there was none.

Legal principles

Orders in respect of children are regulated under Part VII of the Act.

When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D). When making parenting orders, the Court is mandated to regard the child’s best interests as the paramount consideration

(ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents, but that presumption may either not apply or be rebutted in certain circumstances (s 61DA).
In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If parental responsibility for the child is allocated in some other way then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests – primary considerations

The child undoubtedly has a meaningful relationship with both parties from which he derives enormous benefit (s 60CC(2)(a)).
The Family Consultant reported in her Memorandum as follows:
Overall, the child seems relatively unaware of the conflict between his parents. He seems happy and confident. The child spoke with delight about his spending time with both parents.
There is no evidence adduced in this case of the risk of any harm to the child through his subjection or exposure to family violence, abuse, or neglect, so

s 60CC(2)(b) of the Act is not engaged.
However, it should be observed the mother filed a Notice of Risk on 3 July 2015. In respect of the alleged risk of abuse, the Notice only adverts to the allegations of the father’s illicit drug use. How that could amount to “abuse”, as defined in the Act, remains puzzling. In respect of the alleged risk of family violence, the mother referred to affidavits not read in this hearing. Those affidavits were filed in April 2015. It must be remembered that, as recently as 21 May 2015, when the mother filed her Amended Response, her proposal for the child to spend unsupervised time with the father was not influenced by her allegations of past family violence or the risk of it. Notwithstanding the filing of that Notice of Risk, no submissions were made by the mother’s senior counsel in relation to the risk of the child’s subjection or exposure to abuse or family violence.
Consequently, the child’s meaningful relationship with both parents and the desirability of his continuing derivation of benefit from both those relationships was the only primary consideration in this case.

Best interests – additional considerations

Plainly enough, not every factor prescribed by s 60CC(3) of the Act is relevant to a child’s best interests in every case, so it is only necessary to address those that are relevant.
The father accepts the mother has a well-developed parenting capacity. So much is evident from his proposal that the child ultimately live with the mother for equal time and that he and the mother share parental responsibility for the child.
The mother has no qualms about the father’s capacity to provide for the child’s intellectual and emotional needs. Her reservation is about the father’s capacity to properly provide for the child’s physical needs if he is intoxicated, which engages ss 60CC(3)(f), 60CC(3)(g) and 60CC(3)(i) of the Act. For reasons already addressed, the evidence about the father’s use of illicit drugs and the potentiality for his drug use to impinge upon his proper care for the child is relatively weak. There may be some risk, but it could not be fairly characterised as unacceptably high.
Of greater weight is the evidence pertinent to s 60CC(3)(d) of the Act. The child would likely be deleteriously affected by the imposition of professional supervision upon his interaction with the father. The mother’s proposal would also disturb the normalcy of their relationship by deprivation of Friday nights together.
It is well recognised that, absent situations of abuse, children benefit from the development of good relationships with both parents (U v U (2002) 211 CLR 238 at 285-286; M v M (1988) 166 CLR 69 at 76).
In aggregation, the evidence relevant to ss 60CC(2)(a) and 60CC(3)(d) outweighs the evidence pertinent to ss 60CC(3)(f), 60CC(3)(g) and 60CC(3)(i) of the Act. The child needs to retain his strong, unfettered relationship with the father. It should not be impinged by supervision.

Conclusions and Orders

In the absence of any evidence of abuse and family violence, the presumption of equal shared parental responsibility applies (ss 61DA(1) and 61DA(2)).
Even if the mother’s bare allegations of abuse and family violence in her belatedly filed Notice of Risk were taken at face value and the presumption of equal shared parental responsibility was thereby rendered inapplicable, it would not preclude equal shared parental responsibility from being ordered if such an outcome would meet the child’s best interests.
It is unnecessary to engage in an esoteric debate about the form of parental responsibility that could or should be ordered on an interim basis. It is sufficient to recognise that there remains a live debate about the applicability of the presumption of equal shared parental responsibility. Section 61DA(3) of the Act provides that, when making interim orders, the Court may conclude it would not be appropriate in the circumstances for the presumption of equal shared parental responsibility to be applied. I so find in the face of the existent issue about the occurrence of abuse and family violence.
I make no interim order in respect of parental responsibility. Nor did Rees J in April 2015. Each party will retain parental responsibility for the child pursuant to operation of s 61C of the Act.
Since equal shared parental responsibility is not ordered in respect of the child, s 65DAA of the Act is not engaged and the Court is freed from the obligation of considering orders for the child to live with the parties for equal time, or alternatively, for the child to live primarily with one and spend substantial and significant time with the other.
It is common ground the child should live with the mother. It is also common ground the child should spend time with the father by reference to the blueprint created by Rees J. The only debate now is whether the child should be returned to the mother by the father on Friday nights and whether the residue of the time spent by the child with the father should be professionally supervised. The answer to both those questions should be: No. The preponderance of evidence requires the child to continue enjoying the full measure of benefit from his loving relationship with the father. The evidence about the father’s illicit drug use was not sufficiently strong to require the restrictions proposed by the mother.
No evidence or submissions were addressed to identification of any changeover venue, apart from the child’s school or pre-school. For that reason no order is made identifying such a venue. No order was made about that issue by Rees J in April 2015 either, but the parties still managed to successfully exchange the child between them.
Both parties sought additional orders, described below, the applications for which are dismissed.
The father sought make-up time for the child’s visits lost since 1 July 2015. That is an order for the father’s benefit, not the child’s. Only two weeks have passed since the mother ceased compliance with the orders. That application is dismissed.
The father sought an order restraining the mother from discussing the proceedings and any drug and alcohol testing undertaken by the parties with any person outside the proceedings. To the extent she is not already confined by s 121 of the Act, the application is dismissed.
The mother sought an order compelling the father to provide her with a list of :
…all drugs, including prescription and non-prescription consumed by the father or taken by him since the date upon which the parties finally separated.
That application is dismissed. The evidence disclosed the mother already knows the prescriptive medication the father takes for his shoulder, because she has his hospital discharge letter. The father deposed to his illicit drug use in March 2015. It is inappropriate to make a coercive order purporting to force the father to make any further admissions about illicit drug use (if any could be made) that may incriminate him, absent evidence about whether he objects to making such admissions and, if so, submissions and debate then occurring about whether he should be granted a certificate under s 128 of the Evidence Act. There was no such evidence and there was no such debate.
Both parties sought additional orders specifying care for the child during school holidays, communication by the child with the parties, and injunctions restraining them from treating their hair in a manner that would disturb the integrity of future hair follicle testing. Their proposed orders in that regard had elements of consistency but also some significant differences, so orders are made addressing those issues in a way that meets the child’s best interests and minimises prejudice to the parties.
For those reasons, I make the following orders.

ORDERS DELIVERED

Order 7 just made dismisses all outstanding applications which do not merge in the orders.
The Amended Application in a Case prepared by the father on 10 July 2015 sought therein (at Order 10) an order that the mother pay his costs of and incidental to the interim proceedings. The father’s counsel announced that the father abandoned that application and that each party should bear his and her own costs pursuant to operation of s 117 of the Act.
The Amended Application in a Case filed by the mother on 7 July 2015 contained (at Order 9) a proposed order that the father pay the mother’s costs of and incidental to the proceedings. The senior counsel appearing for the mother announced that application is no longer pressed by the mother. Instead, the mother sought that both parties’ costs be reserved to a subsequent date.
I am disinclined to reserve costs, as the issue would then need to be adjudicated by another judge on a future date when that judge is not familiar with the circumstances of the interim hearing, which was conducted across two days on Monday 13 and Tuesday 14 July 2015. There was no good reason to defer the decision about costs of the interim hearing, other than to avoid having to deal with the issue now. The determination about costs should be made now.
Effectively, the fresh interim hearing was precipitated by a drug test which caused the mother to impulsively react and terminate the child’s face-to-face interaction with his father. As it transpired, her application to significantly change the interim orders made at the first hearing in April 2015 was dismissed. Her application was not wholly unsuccessful, but the ultimate outcome was closer to the proposal of the father than it was to the proposal of by the mother.
Section 117(1) of the Act provides that, subject to some exceptions which are not presently relevant, each party to proceedings under the Act shall bear his or her own costs. Senior counsel for the mother did not take the Court to any consideration under s 117(2A) of the Act in his submissions, either generally or to support the mother’s amended application for reservation of costs. In the circumstances, I am satisfied the orthodoxy specified by s 117(1) of the Act should prevail. I do not think it is appropriate that either party should have their costs of the interim proceedings.
All outstanding interim applications are dismissed.

I certify that the preceding eighty five (85) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Austin delivered on 14 July 2015.

Associate:

Date: 27 July 2015