Ericsson and Jarrold (No. 2)
[2020] FamCAFC 299
•2 December 2020
FAMILY COURT OF AUSTRALIA
| ERICSSON & JARROLD (NO. 2) | [2020] FamCAFC 299 |
| FAMILY LAW – APPEAL – CONTRAVENTION – Where in dismissing his contravention application the appellant asserts that the primary judge did not provide adequate reasons – Where the primary judge has provided adequate reasons and the pathway to the decision is entirely transparent – Where there is no merit in this aspect of the appeal and it must be dismissed. FAMILY LAW – APPEAL – PARENTING – Where the application to vary previous parenting orders was dismissed pursuant to the principle in Rice and Asplund (1979) FLC 90-725 – Where there is no denial of procedural fairness – Where there is no lack of adequate reasons – Where having found no sufficient change of circumstances there was no basis to order a family report – Where the primary judge has not erred – Where there is no merit in any of the grounds of appeal and this aspect of the appeal must be dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks leave to adduce further evidence – Where the respondent seeks dismissal of this application – Where there is plainly an issue of admissibility in relation to the evidence sought to be adduced and it is clear that it is controversial – Where the evidence post-dates the hearing before the primary judge by substantial periods of time and does not satisfy the test propounded in CDJ v VAJ (1998) 197 CLR 172 – Application dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent sought costs in the event that the appeal was dismissed – Costs to be dealt with separately. |
| Family Law Act 1975 (Cth) s 93A(2) |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 |
| APPELLANT: | Mr Ericsson |
| RESPONDENT: | Ms Jarrold |
| FILE NUMBER: | DGC | 1317 | of | 2013 |
| APPEAL NUMBER: | SOA | 73 | of | 2019 |
| DATE DELIVERED: | 2 December 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide by video link |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 4 August 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 8 November 2019 |
| LOWER COURT MNC: | [2019] FCCA 3201 [2019] FCCA 3202 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL-ADVOCATE FOR THE RESPONDENT: | Mr Rockman |
| SOLICITOR FOR THE RESPONDENT: | Rockman & Rockman Lawyers |
Orders
The Application in an Appeal filed on 14 July 2020 be dismissed.
Appeal no. SOA 73 of 2019 be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ericsson & Jarrold (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 73 of 2019
File Number: DGC 1317 of 2013
| Mr Ericsson |
Appellant
And
| Ms Jarrold |
Respondent
REASONS FOR JUDGMENT
Introduction
On 23 April 2020 Mr Ericsson (“the father”) filed a Further Amended Notice of Appeal appealing against orders made on 8 November 2019 by Judge Mercuri, dismissing the father’s contravention applications filed on 12 October 2018 and 13 February 2019, and his Initiating Application filed on 12 October 2018 as amended on 7 March 2019.
Ms Jarrold (“the mother”) opposes this appeal.
On 14 July 2020, the father filed an Application in an Appeal seeking leave to adduce further evidence. On 3 August 2020 the mother filed a Response seeking dismissal of this Application in an Appeal.
Background
The father was born in 1963 and is now 56 years of age. He is a professional, but at the time of the relevant hearings he was unemployed due to health reasons.
The mother was born in 1974 and is now 46 years of age. She is employed full-time as a manager.
The parties commenced to live together in 1993; they married in 1993; separated in 2012; and divorced in 2015.
There are three children of the marriage, X in 2003, Y born in 2006, and Z born in 2008. These children all live with the mother and her current husband, Mr Jarrold.
The father has also remarried, and his current wife has two children who live with them.
The parties have been engaged in continuous litigation since 2013, and the children were spending time with the father pursuant to final orders made on 18 December 2014, as varied in August 2016 and in January 2018, and orders made on 12 September 2017 as a result of contravention proceedings brought by the mother against the father in 2016. I also note that on 12 September 2017 Judge Small placed the father on a two year good behaviour bond with a surety of $1,000.
On 15 November 2017, contravention applications filed by the mother on 24 April 2017, 8 August 2017 and 10 November 2017 were consolidated and listed for trial before Judge Small on 12 November 2018.
On 16 August 2018, the father filed an Application in a Case seeking an order that Judge Small recuse herself in all current and future proceedings between the parties.
That application was heard by her Honour before proceeding with the trial on 12 November 2018, and her Honour dismissed it.
Her Honour proceeded with the hearing of the trial, finding that the father had contravened previous orders of the court on five occasions without reasonable excuse, and made an order that the father enter into a bond of three months duration, commencing on 12 September 2019 with a surety of $1,000 to be of good behaviour and to comply with all orders of the Federal Circuit Court of Australia.
On 12 October 2018, the father filed an Initiating Application seeking orders varying the final parenting orders made on 18 December 2014, and on 8 March 2019 he filed an Amended Initiating Application.
By a Response filed on 15 April 2019, the mother sought dismissal of this application.
On 30 April 2019, Judge Mercuri heard the Amended Initiating Application and the Response, and made the orders referred to above on 8 November 2019. Those orders are the subject of this appeal.
On 12 October 2018 and 13 February 2019, the father filed contravention applications alleging the mother had breached various of the orders made on 18 December 2014. Her Honour heard these applications on 30 April 2019, and made the orders referred to above on 8 November 2019. These orders are also the subject of this appeal.
The Appeal
The primary judge had two separate sets of proceedings before her. The first comprised two applications filed by the father respectively on 12 October 2018 and 13 February 2019, alleging contraventions by the mother, and the second being the father’s Initiating Application filed on 12 October 2018 as amended on 8 March 2019, seeking variations to the final parenting orders made on 18 December 2014. That application was listed before her Honour as a preliminary hearing to consider the applicability of the principles in Rice and Asplund (1979) FLC 90-725.
Her Honour dismissed all of those applications on 8 November 2019, delivering two separate judgments.
There were five grounds of appeal raised by the father, but this Court struck out one of those grounds on 12 May 2020, namely Ground 2. That left the following grounds:
1.The first ground asserts a lack of adequate reasons by her Honour Mercuri in making the orders that she did per both orders in part D.
3.Failure by her Honour Mercuri to provide procedural fairness in case 08/11/2019 ERICSSON & JARROLD (No.9) [2019] FCCA 3202.
4.The trial judge failed to give sufficient reasons for her Honour’s decisions to dismiss case (No.9) without considering documented children exposure to family violence perpetrated by the mother’s husband.
5.The change in circumstances was such that at least a report by an expert was justified. The trial judge failed to consider that option, she also failed to balance a 2017 positive report by an expert which was ordered by previous Judge in separate proceedings.
(as per original)
Plainly Grounds 1 and 4 raise the same issue, namely the adequacy of the reasons given by her Honour in dismissing the Initiating Application as amended, and thus they can be addressed together.
Grounds 3 and 5 relate to that same order made by her Honour, but they will need to be addressed separately.
That leaves Ground 1 as the only ground addressing the order dismissing the father’s applications alleging contravention.
Applications Alleging Contravention
There were five alleged contraventions asserted by the father, however, her Honour struck out two of those, leaving three counts for her Honour to deal with in her reasons for judgment.
To repeat, the only ground of appeal directed to the order dismissing these applications is Ground 1, asserting a lack of adequate reasons.
There can be no doubt about the requirement that a trial judge provide adequate reasons, and helpfully the Full Court in Bennett and Bennett (1991) FLC 92-191 said this at 78,266:
In general, the appellate court should be able to discern either expressly or by implication the path by which the result has been reached.
In his summary of argument the father not only submits that there is a lack of adequate reasons in relation to the three counts the subject of the written reasons for judgment, but in relation to the first count struck out during the course of the hearing, the father contends at paragraph 24 of his summary of argument filed on 24 July 2020, that her Honour provided no reasons for that striking out.
That is simply incorrect, and her Honour’s reasons appear in the transcript of the hearing.
The first count alleged that the mother contravened paragraphs 5(a) and 7(a) of the order made on 18 December 2014 by failing to make the children available for collection by the father at 3:30pm on a Friday for the purposes of a religious festival.
However, on this occasion the festival was to commence at 3:30pm on the Saturday, and pursuant to paragraph 5(a) of the order, that was when the children’s time with the father was to commence.
Accordingly, at Transcript 30 April 2019, p.32, this issue was raised with her Honour, her Honour then heard submissions from both parties, and at Transcript 30 April 2019, p.38 lines 35–39, her Honour said this:
HER HONOUR: I understand what you’re saying, Mr Ericsson, but I’m satisfied that the – the contravention as pleaded could not possibly have been – could not possibly be made out on the basis that when one looks at clause 5(a) and 7(a), the – there is no obligation on the mother to have made the children available at 3.30 on a Friday, and therefore, I strike out that contravention.
Plainly there is no error here by her Honour, and her Honour provides adequate reasons for her decision. The pathway to that decision is entirely transparent.
As for the second count struck out during the hearing, the father does not refer to that at all in his summary of argument. In any event, it is again apparent that her Honour provided adequate reasons for striking out that count.
In simple terms, the father’s contention was that the mother had breached paragraph 14 of the order made on 18 December 2014, by not informing him of her intention to travel overseas. However, that was not what paragraph 14 required; it provided as follows:
That each party shall inform the other of their intention to remove the children from Victoria.
(my emphasis)
The mother had not removed the children at this time; she left them in the care of her mother.
Thus, again there was no contravention by the mother, and her Honour explained that at Transcript 30 April 2019, pp.39-40.
Turning then to the balance of the counts alleged. They were described by her Honour as follows:
3. The remaining contraventions allege that:
a)during the period from 21 to 28 January 2018, the mother failed to inform the father of her intention to remove the children from the State of Victoria no less than 7 days prior to doing so, and travelled interstate to NSW with the children and did not inform the father of their destination and a telephone number for such period in breach of order 14 of the final orders (“first alleged contravention”);
b)in … 2017, … 2018 and … 2018, the mother did not facilitate the children’s time with the father for the children’s Jewish birthdays, nor did she provide alternative make up time (“second alleged contravention”); and
c)for the period from 8 to 10 February 2019, the mother, without reasonable excuse, refused to allow the children to spend time with the applicant in breach of order 4(a) of the final orders (“third alleged contravention”).
As for the first alleged contravention, the father makes no submission in his summary of argument in support of his assertion that her Honour’s reasons for finding there was no contravention were inadequate. In any event, the assertion that they were inadequate is again patently false.
Her Honour provides her reasons for finding this contravention not proven at [38]-[45], and again, those reasons plainly reveal the pathway to her Honour’s decision, and I need say no more about the father’s assertion.
With the second contravention, the father only devotes one paragraph (30) to this claim in his summary of argument. However, again, there is no merit in this allegation, and that paragraph does not demonstrate otherwise.
Her Honour addressed this alleged contravention at [46]-[59], and there reveals once again the pathway to her decision in finding this contravention not proven.
As to the third contravention, again the father devotes one paragraph, (31), in his summary, to this claim. Yet, nowhere in that paragraph is it demonstrated how her Honour’s reasons were inadequate. Instead, the father attempts to suggest that her Honour was wrong in the reasons she provided. However, not only does her Honour adequately reveal the pathway to her decision, in [60]-[76], I am not persuaded that her Honour erred in any of those reasons.
Conclusion
Having found no merit in the one ground of appeal that relates to the order dismissing the father’s contravention application, this aspect of this appeal must be dismissed.
The Application seeking variations to the final orders
I have set out above the grounds of appeal relevant to her Honour’s order dismissing this application, and I need not repeat them.
I confirm though that Grounds 1 and 4 raise the same issue, namely lack of adequate reasons, and I will address those grounds together.
Ground 5 will need to be addressed discretely, but it is necessary to deal with Ground 3 first, given that if that ground is established, the order would need to be set aside and the matter remitted for rehearing (Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 229 CLR 577).
Ground 3
It is readily apparent that except in perhaps two respects, the father fails to appreciate the meaning of procedural fairness.
In short, it enjoins a judicial officer to ensure that a litigant has the opportunity to present his or her case, and in that context, address the case mounted by the other side.
However, in his summary of argument for example, the father submits that he was denied “procedural fairness” by her Honour not accepting his evidence and/or his submissions, and by “doubting the credibility” of a statement annexed to his affidavit. These are entirely different issues, and do not reveal a denial of procedural fairness.
The two matters raised that prima facie do raise such an issue are first, the father’s claims that he did not have the “benefit of seeing the written submission [of the mother] prior to the 30 April 2019 hearing”, that he was “requested to give [his] oral submissions on the day, with no preparations”, and that her Honour did not order him to file written submissions “in advance” (paragraph 3, father’s summary of argument filed on 24 July 2020).
As to these matters, first, it is apparent that the mother’s written submission was filed and served on the father on 29 April 2019, and thus he had that submission before the hearing. Further, there was no application by the father to adjourn the proceedings because of any prejudice to him as a result of that circumstance.
In relation to the father’s submissions, it was his application filed some time before the hearing and thus he should have been well prepared to present his argument orally on the day. Again, no adjournment was sought as a result of his alleged unpreparedness.
Finally, the father did not seek an order from the court providing for submissions in advance, but it is noteworthy that at the directions hearing on 14 March 2019, when this matter was set down for hearing, her Honour ordered outlines of case to be filed by each party, and that order was complied with.
Secondly, the father complains that her Honour heard the Rice and Asplund argument as a preliminary issue, and not at a final hearing. However, that is not a complaint that can succeed. A judicial officer has a discretion whether to hear a Rice and Asplund argument as a preliminary issue, or to hear it in the context of a final hearing. More often than not though, it is heard as a preliminary issue because, if it is unsuccessful, that then avoids the time, expense and resources involved in a full hearing. Moreover, there can be little point in leaving it to a final hearing because the raison d’etre of the principle in Rice and Asplund is that, if it applies, then that will be because it is found not to be in the best interests of the child or children to reopen the litigation and proceed to a final hearing.
For an insightful discussion of these matters see SPS & PLS (2008) FLC 93-363 per Warnick J at [49]-[74].
Importantly, that was all explained to the father at the commencement of the hearing (Transcript 30 April 2019, pp.1-2).
Allied to this complaint, the father says that he was not permitted to call witnesses. However, that can be the nature of a preliminary hearing; each party files and relies on affidavit material, and then legal argument is taken on the day, without the calling of any witnesses, or the cross-examination of the parties. Indeed, the father appeared to understand this when her Honour was explaining the process to him (Transcript 30 April 2019, pp.3-5).
Finally, although not strictly a matter of procedural fairness, I note the father says that her Honour failed to consider his affidavits, or give him an opportunity to assert the merit or rationale of his proposed orders. However, as submitted by the mother, it is evident from her Honour’s reasons (at [38] and [43]), that her Honour read and considered the matters deposed to in the father’s affidavits. Further, her Honour invited the father to address the court (Transcript 30 April 2019, p.5 lines 10–15 and p.10 line 25), and gave him every opportunity to raise any matters that he wished to, even when they were irrelevant.
Thus, there is no denial of procedural fairness here, and this ground of appeal has no merit.
Grounds 1 and 4
The variations that the father sought to the final orders were summarised by her Honour at [37] as follows:
37.On 7 March 2019, the father filed an amended initiating application in which he sought the following variations to the 2014 final orders:
a) changeover;
b) time with each parent over the school holidays;
c) time on Jewish festivals;
d) collecting Z from school at 3:00pm;
e)the children having a mobile phone when they commence year 7;
f) the imposition of certain restraints on the mother;
g) the children’s time with the father on their Jewish birthdays;
h)the father’s participation in the children’s school activities; and
i) the children’s time with the father during school holidays.
In his affidavit material and in his oral submissions, the father sought to agitate a plethora of allegations and issues that he had with the mother in relation to the children, but during the hearing her Honour repeatedly pointed out to him that most of the matters he was seeking to raise had been previously considered and dealt with by the court, and likewise, documents that he sought to rely on, such as a Family Report prepared in 2017 for a hearing before Judge Small. Indeed, at various points her Honour was obliged to point out to the father that her Honour was not sitting as an Appeal Court. For example, at Transcript 30 April 2019, p.12 lines 13-40 her Honour said this:
[THE FATHER]: The mother is stating that I’m harassing the children by calling them, which is not the case. I have great relationship with my children, if the children want to call me, I believe that the court should allow that in an explicit order. Now, moreover, I’ve requested that – that there will be certain designated time, per week, for 15 minutes, to have the – to – to – to talk to the children, especially when I see them only once a fortnight. Before then, I was seeing them for three hours on Thursday; that was removed. The recommendation of the family consultant, …, at 2017 – August 2017, stated that the – that the communication should be – should be provided. That was overlooked by Judge – by – by Judge Small.
Now, if we take everything that the mother is stating as – as given in there, disregarding what I said in court, I believe this is a miscarriage of justice, because it is not possible there’s only one person in a conflict responsible for everything that is happening in this court. There are two parties in here, and I take my responsibility for what has happened in the past.
HER HONOUR: Mr Ericsson I need to explain, just in case you haven’t understood, the role of this court is not to act in an appeal capacity. So, to the extent that you’re saying that things were argued before her Honour Judge Small and were overlooked or were not taken into account that is a matter that you may well have raised on an appeal to a higher court, but ---
[THE FATHER]: well, actually, there is an appeal
HER HONOUR: - - - it’s not a matter that is relevant in these proceedings; do you understand?
[THE FATHER]: Yes. I understand. There is an appeal.
Further, her Honour was at pains to direct the father to address what was at issue, and her Honour said this:
HER HONOUR: It’s a question of whether or not there has been a change – and I’m just refocusing you, because, ultimately, that is the consideration that I need to have regard to. So that’s why I’m just redirecting you to address me on what it is that you say has changed between the last occasion that you were here before this court – when you argued all of these matters and when it was determined by a judge of this court, what has changed between that time and now.
(Transcript 30 April 2019, p.13 lines 15–20)
In response to this, all that the father identified was described by her Honour as follows:
47.When asked to articulate what he said constituted the changed circumstances which would justify the court allowing him to proceed with his amended initiating application, the father said:
a)the risk to the children is the paramount consideration, in circumstances where the children have repeatedly reported incidents of physical abuse and being the subject of such abuse in the mother’s home; and
b)the children reported these matters to the police on 31 March 2019.
(footnotes omitted)
(also see Transcript 30 April 2019, pp.13-14)
The primary evidence relied on in this regard by the father was a transcript that he prepared, of a question and answer session between him and the child X, wherein the latter expressed his feelings towards the mother’s husband, and alleged that he had “reported” his concerns to the police.
As for the latter circumstance, it seems the two eldest children, X and Y, had presented at the police station at a time when they were in the care of the father, and that he had taken them there.
However, there was clearly an issue as to the weight that could be attached to this “evidence”, given previous findings that the father had discussed these proceedings and related matters with the children, and inappropriately involved them in adult issues, and the proceedings themselves.
Further, any difficulty between the children and the mother’s husband was not a new issue, but rather was one that had been previously raised by the father, for example, in proceedings before Judge Phipps in 2015, and then later before Judge Small, and it was also the subject of the Family Report prepared in 2017.
Her Honour went to great lengths in her reasons for judgment to detail the extraordinarily protracted history of court proceedings between the parties, recorded and carefully analysed the contents of their affidavits, their oral submissions, and the written submission of the mother, and concluded as follows:
Consideration
70.In this case, having regard to the father’s case at its highest, the only real change in circumstance is the fact that X attended at the police station to report concerns about the mother’s husband, together with the father’s transcript of his conversation with X about this same issue. Importantly however, whilst the reporting to the police is new, the underlying complaint about the treatment metered out to the children by the mother’s husband is not a new allegation. It is a matter to which the father has made reference in previous proceedings. So much is clear from the father’s own affidavit affirmed 12 October 2018. To the extent that X appears now to be a complainant, the court needs to exercise some caution in accepting that this is a change in light of the fact that concerns have previously been raised about whether the father encouraged the complaint to be made.
71.In any event, the father submitted that he does not expect the children to obtain an intervention order against the mother’s husband, but rather he seeks an order that ‘unreasonable reprimand, the punishment, the abusive behaviour the exposure to... violence in the presence of my children … to be stopped.’
72.In circumstances where previous concerns have been raised by the court about the father involving the children in the litigation process, there is a question about the extent to which weight can be given to this incident as a basis for reopening parenting proceedings.
73.In any event, even if this were a significant change for the purpose of applying the principle in Rice & Asplund, that is not the end of the matter. I must still consider whether it is in the best interests of these children for the court to permit further litigation.
74.Having regard to the history of this matter and to the fact that the bulk of the matters which the father seeks to re-agitate before this court, including his concerns about the mother’s husband’s conduct towards the children, have previously been raised and dealt with in earlier proceedings, I am not satisfied that it is in the children’s best interests for the father to be permitted to proceed with his application.
75.It is apparent that the father does not agree with many aspects of the 2014 final orders. He has, on numerous occasions, sought to reopen those proceedings with limited success. Whilst not without their own difficulties given the complexities created by trying to accommodate a range of special occasions as well as term holidays and regular term times, the orders provide a means by which the children are able to maintain a relationship with both parents. The evidence which was led in previous proceedings, including the family report released in August 2017, says that the children have a positive relationship with both parents.
76.The father also takes issue with a number of the allegations made about him in the initial proceedings and in the various intervention order proceedings pursued by the mother. He feels aggrieved by these findings. However, those findings were made by a judge of this court after four days of hearing, with the benefit of observing the totality of the evidence before him. Whilst the father seeks to ‘clear his name’, this court needs to determine whether permitting him to continue to re-agitate those concerns is in the children’s best interests.
77.I am not satisfied that it is. Further litigation in this matter would require the children to again be exposed to the protracted dispute between their parents. It would also require them to be interviewed again by a family consultant.
78.These children need finality to this litigation which has now continued in a fairly intensive way for almost six years.
Conclusion – Rice & Asplund issue
79.For each of these reasons, I am not satisfied that it is in the children’s best interests to allow the father’s amending initiating application filed on 7 March 2019 to proceed. This type of ongoing litigation is the very vice which Rice & Asplund seeks to mitigate.
80.I therefore order that the father’s amended initiating application be dismissed.
(footnotes omitted)
The father suggests in his summary of argument that her Honour “ought to have assessed and gave reasons to why each of my order adjustments to the final orders cannot result in changes to the orders” (paragraph 1 father’s written summary of argument filed 24 July 2020). However, her Honour was not required to do this. The issue for her Honour was whether there was a sufficient change of circumstances demonstrated, requiring the court to reopen the litigation and embark on a rehearing to determine whether the variations sought by the father should be made, and whether to do so was in the children’s best interests. Her Honour found that this threshold issue was not satisfied.
As can be seen, there is no lack of adequate reasons, and this Court is well able to discern the path by which the result has been reached. Thus, there is no merit in Grounds 1 and 4.
I pause to address the Application in an Appeal filed by the father on 14 July 2020 seeking leave to adduce further evidence, comprising two Department of Health and Human Services reports dated respectively 19 February 2020 and 24 February 2020, prepared for Court proceedings.
There is plainly an issue of admissibility in relation to those reports, and it is clear that they are controversial. Further, and significantly, they do not demonstrate error by her Honour in the findings that she made, resulting in the dismissal of the father’s Amended Initiating Application; both reports post-date the hearing before her Honour by substantial periods of time. In other words, this “evidence” does not satisfy the tests propounded in CDJ v VAJ (1998) 197 CLR 172, for the admission of further evidence pursuant to s 93A(2) of the Act.
As for this evidence being contentious, the father omitted to inform the court that the proceedings in the Court were struck out in February 2020, following the withdrawal by the Department of the allegations made against the mother’s husband.
Thus, I propose to dismiss the Application in an Appeal.
Ground 5
The submission of the father is that the “change of circumstances” demonstrated by the transcript of the discussion between the father and X “justified the ordering of a report by an expert”.
However, her Honour was not prepared to act on that transcript for reasons already explained, and there was no basis for her Honour to require a further report. Thus ground has no merit either.
Conclusion
Having found no merit in any grounds of appeal, this aspect of the appeal must also be dismissed.
Costs
In the event that this appeal was dismissed, the mother sought an order for costs, and I propose to address that application for costs, together with the application for costs in appeal nos. SOA 34 of 2020 and SOA 96 of 2018, in a separate judgment.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 2 December 2020.
Associate:
Date: 2 December 2020
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