Fooks & Clark

[2004] FamCA 212

[2004] FamCA 212

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT BRISBANE

Appeal No. NA35 of 2003
File No. BR 5188 of 2001

IN THE MATTER OF:

GARY IAN FOOKS

Appellant
(Father)

and

RUTH DAVINA CLARK

Respondent
(Mother)

REASONS FOR JUDGMENT

BEFORE:  Ellis, Holden and Young JJ
HEARD:  2^nd day of October 2003
JUDGMENT:  29^th day of March 2004

APPEARANCES:                   Mr G.I. Fooks of 7/41 Brookfield Road, Kenmore in the State of Queensland, 4069 was self represented

Ms R.D. Clark of 76 Kintyre Street, Brookfield in the State of Queensland, 4069 was self represented

Catchwords:                 FAMILY LAW – Appeals – Contravention – Appeal against dismissal of contravention application – Principles applicable to the receipt of further evidence on appeal – Whether agreement by parties prior to the making of consent orders as to the meaning of such orders can be considered ex post facto – Whether trial Judge’s findings were supported by the evidence.

Legislation cited:-

Family Law Act 1975 – s.93A(2) and s.70NC

Case Law cited:-

CDJ v VAJ [1998] 197 CLR 172

Yunghanns v Yunghanns (1999) FLC 92-836
Langford and Coleman (1993) FLC 92-346

Appeal dismissed.

Not Reportable.

INTRODUCTION

1. This is an appeal by the father against the order of May J of 21 May 2003 that his application for a Contravention order filed on 27 February 2003 be dismissed. 

1. The parties commenced to cohabit in approximately October 1994, married on 13 April 1995 and separated on 20 December 2001.

1. There is one child of their marriage, A, who was born on 26 July 1997.

PREVIOUS ORDERS

1. On 12 December 2001 Registrar Wilkie ordered, by consent, until further order:

“1.That the father have contact with the child, A, at all times as agreed and failing agreement as follows:

(a)for one week commencing at 12.30 p.m. Friday 14^th December 2001;

(b)for one week commencing at 12.30 p.m. Friday 28^th December 2001;

(c)for one week commencing at 12.30 p.m. Friday 11^th January 2002;

(d)each alternate weekend from after pre-school on Friday to 6.00 p.m. Sunday or when such weekend coincides with a long weekend and include the Monday, to 6.00 p.m., commencing 1^st February 2002;

(e)each alternate Friday from after pre-school on Friday to 6.00 p.m. Friday commencing 8^th February 2002;

(f)for 2 hours on the child’s birthday and the father’s birthday each year;

(g)commencing Easter 2002 for one half of all school holidays;

(h)from after the completion of the 9.00 a.m. service at the Kenmore Baptist Church until 2.00 p.m. Christmas Day;

(i)telephone contact when the father so chooses;

2.That the mother be at liberty to telephone the child when he is on holiday contact with the father at times she chooses.

3.That the parties be at liberty to visit the child at any times they wish whilst the child may be hospitalised.

4.That in the event the mother intends to relocate outside greater Brisbane she give the father prior notice of 28 days in writing.

5.That unless otherwise specified in these Orders, changeover to occur at the residence of MARK and KERRY HARGRODEN or as otherwise agreed between the parties.

6.That Order (5) of the Orders of 10^th August 2001 be discharged.

7.That neither party discuss the proceedings and adult issues with the child.

8.That the parties ensure the child attends upon such counsellor as recommended by the Child’s Representative and agreed to by the parties”.

1. On 7 January 2003 Judicial Registrar Smith made a parenting order which provided, inter alia, that the father have contact to A from 5.00 p.m. on 24 January 2003 until 5.00 p.m. on Sunday 26 January 2003.  In addition the Judicial Registrar noted:

   “(5)That alternate weekend contact will recommence on Friday 7 February 2003.

   (6)That the APPLICANT FATHER agreed to forego contact to A on 27 January 2003 so that the child can prepare for the commencement of the school year”.

Whilst this order of Judicial Registrar Smith does not specifically refer to the order of Registrar Wilkie, it is apparent that the alternate weekend contact noted in paragraph (5) of the order is the contact ordered by him [the Registrar] in paragraph 1(d) of the order made on 12 December 2001.

FATHER’S INITIATING APPLICATION

1. In his application filed 27 February 2003, the father set out the facts alleged to constitute the contravention of the order of Registrar Wilkie as follows:

2. The mother failed to make the child A, available for contact on Friday 20^th December to Sunday 15^th December, 2002.  (Order 1 (d)).

3. The Mother failed to make the child A available for contact on Friday 20^th December 2002.  (Order 1 (e)).

4. The Mother failed to make the child A, available for contact on Christmas Day, 25^th December 2002.  (Order 1 (h)).

5. The Mother failed to make the child A, available for contact on Friday 27^th December to Sunday 29^th December, 2002.  (Order 1 (d)).

6. The Mother failed to make A available for Holiday contact from Friday 13^th December for one half of the School Holidays.  (Order 1 (g)).

7. The Mother denied the Father telephone contact when the Father so chooses (sic).  (Order 1 (i).

8. The Mother failed to make the child A, available for contact on Friday 31^st January 2003.  (Order 1 (e)).”

GROUNDS OF APPEAL

1. During the course of the hearing, the father was granted leave to amend Ground 1 and to add a further subparagraph (1.3) to that ground.  He also informed the Court that he abandoned Ground 4 as set out in the Further Amended Notice of Appeal.  The grounds on which he ultimately relied are as follows:

   “1.Her Honour erred in finding that there was no case to answer in relation to alleged contravention 1 and 2 vis:

   1.The Mother failed to make the child A, available for contact on Friday 13^th December to Sunday 15^th December, 2002.

   (Order 1 (d))

   2.The Mother failed to make the child A, available for contact on Friday 20^th December 2002.  (Order 1 (e))

   3.The Mother failed to make the child A available for contact on Friday 31 January 2003.

   Her Honour, in dismissing the charges did not disagree that the wording or the current orders did not state that the Father’s contact was not suspended when he do not have holidays.  (The order only gives the father holidays, not the mother, there is no suspension of fathers (sic) contact in these orders unlike orders in reported cases)  Her Honour (sic) reasons for Judgement in paragraph 6 of 20 May stated words to the effect that it was an absurdity to assume the mother did not have holidays.  This flies in the face of centuries of law – to infer something that is specifically not written.  The wording on the orders is very clear – that there are no holidays for the mother.  There is no precedence or reported case supporting her Honour in Family Law.

   2.Her Honour refused, without reason, to order that certain evidence be produced as requested.  The evidence was the original recording of the discussions before Smith JR, when the Orders and notations on the orders, were being made in January 2003.  This recording, which can only be released by a Judge, would prove that the Mother understood that contact was to recommence on Friday 31^st January 2003.  (Alleged contraction 7).  Thus if the Mother was shown to have understood, then the judgement of reasonable excuse (because the mother failed to understand) is in error.  Her Honours (sic) refusal to order the relevant evidence, which would prove or dispove (sic) the allegation is contrary to the principles of Justice.

   3.Her Honour erred in her decision in relation to the alleged breach on Christmas Day 2002.  Her reasons for judgement seem to rely upon the fact that the 5 year old child refused to go.  To state that any child, under 16, has the free will to decide whether to go to eithr (sic) parent or school or the dentist is an absurdity.  Her Honour failed to consider the possibility that the childs (sic) refusal was encouraged by the mother before the failed handover, even though she noted that the mother arrived using a video camera.”

APPLICATION TO ADDUCE FURTHER EVIDENCE

1. At the commencement of the hearing of the appeal, the father sought leave to adduce further evidence pursuant to the provisions of s.93A(2) of the Family Law Act 1975 (Cth) (“the Act”).

2. The father’s application was as follows:

   “1.The Applicant, Gary Ian Fooks be granted leave to access, copy and have transcribed the voice recordings of the discussion that took place after the trial and from the commencement of the judgment and the reasons for judgment, in the matter of Fooks and Clark before Smith JR on 7 January 2003.

   2.The Applicant, Gary Ian Fooks, be granted leave to have the materials produced above to be given in further evidence before the appeal.”

10. In support of that application the father relied upon his affidavit filed 29 August 2003.  What the father was seeking to establish by this further evidence was that the mother understood the orders and thus did not have a reasonable excuse for refusing contact.

11. After hearing submissions in relation to the reception of the further evidence we dismissed the application and indicated that we would give reasons for so doing later.  We now turn to those reasons.

12. No application was made by the father at the commencement of the hearing before her Honour to obtain the evidence which he now seeks to adduce before this Court and then to tender it.  His request to the trial Judge was made near to the completion of the hearing.  We concluded that it was not in the interests of justice to adjourn the hearing to enable the father to obtain the evidence to which he referred, nor was it in the interests of justice to admit that evidence had it been available.

13. The principles relating to the admission of further evidence were considered by the High Court of Australia in CDJ v VAJ [1998] 197 CLR 172 and by this Court in T and S (2001) FLC 93-086. The majority in CDJ v VAJ (supra) said [footnotes omitted):

“102. The question of the circumstances in which the Full Court of the Family Court should exercise its discretion to receive further evidence, in exercise of the power conferred by s 93A(2), is therefore to be determined as a matter of statutory construction. That matter should not be approached as if the common law procedures which gave rise to the principles laid down in such authorities as Wollongong Corporation  conclusively indicate the proper construction of the statutory provision. 

…

104. In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation  based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion.  

…

108. When regard is had to Pt X and its place in the scheme established by the Act, it is apparent that the common law rules which govern the admission of fresh evidence in the common law courts cannot exhaustively define the scope of the discretion. The discretion is more ample than the principles applicable in common law proceedings and applied in Wollongong Corporation . That, of course, does not mean that the discretion reposed in the Full Court by s 93A(2) is unfettered, a point recognised by the Full Court in In the Marriage of Abdo . Although the discretion to admit further evidence is not attended by any express words of limitation, the subject-matter, scope and purpose of the appeal provisions in Pt X of the Act and the issues involved in each appeal will point to the considerations which are or are not extraneous to the exercise of the power.

109. One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made. 

…

111. Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original . In Attorney- General v Sillem , Lord Westbury LC pointed out that ''[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below.''  Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable.  In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal.  Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a ''trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence.''  Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie  entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.”  

14. Their Honours observed that the discretion in s.93A(2) confers must be exercised judicially and went on to say:

“116. The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.” 

15. Having regard to the principles enunciated by the High Court to which we have referred, we were not affirmatively satisfied that the demands of justice would be met by the making of the order sought by the father, nor otherwise persuaded that the discretion conferred by s.93A(2) should be exercised in the manner urged upon us by him. We thus dismissed his application.

WRITTEN SUBMISSIONS

16. The father and mother each filed written submissions.  The father objected to the mother being permitted to rely on portion of paragraph 5 of her submissions.  In the event, we struck out that part of the mother’s written submissions to which the father objected.

GROUNDS 1.1 and 1.2

17. In support of these grounds, the father submitted that the order relating to the contact between A and himself during school holidays ought to be interpreted on what he described as the "literal interpretation".  He thus submitted that he was entitled to exercise alternate weekend and Friday contact to A during the whole of the school holiday periods.  The authorities upon which he relied in support of his submission are detailed on page 4 of his summary document.

18. Adopting such an interpretation of the order would mean that the mother would never enjoy a continuous week or more of school holidays with A.

19. Her Honour considered this submission in her reasons as follows:

“5… in essence his (the father’s) argument is this, that the wording of the order made on 12 December reveals, at least to him, that he was entitled to have alternate weekend contact or the Friday contact with the child even during the school holidays. 

6.… In my view the order is quite clear.  He has alternate weekends one weekend.  The following weekend he sees the child on the Friday.  He then has half of all school holidays.  It would be an absurdity to suggest that in addition to half of all school holidays during the mother’s other half that the father would have every second weekend and the Fridays.  If that was intended the order does not say that and Mr Fooks would need to bring another application to ask for such orders.

7.His submission was that there is no reference in the orders that weekend access would be suspended and he pointed to Stevenson v Hughes where such an order was made.  Numerous types of orders are made in this Court and it is quite wrong for litigants to conclude that there is some standard order.  In this case the order speaks for itself.  The father is to have half of all school holidays and during school term he is to have alternate weekends and the Friday afternoons.

8.I cannot imagine how it could mean otherwise because what would happen to the child for the other half of the school holidays?  I reject the contention that the father was in some way entitled to the school holidays.

9.As he seems to suggest there were disputes between the parties it is obvious, at least to me, that the mother was entitled to the other half of the school holidays uninterrupted.  I therefore find that there is no prima facie face in relation to para. 1, para. 2 and para. 4 of the husband’s application.”

20. We agree with her Honour’s observations recorded in paragraph 19 hereof.  Where there is an existing order for parents to equally share all school term and Christmas holiday periods it must be that, as a matter of common sense and practicability, as well as being in the best interests of a child, the order is read as a whole and that daily and alternate weekend contact be suspended during all such school holiday periods.  If parents wish to make other specific arrangements then they must ensure that they are properly identified and provided for in the order.

21. It is self-evident in our view that, if the father was to enjoy one half of the school holidays, then the mother would, of necessity and upon a correct interpretation of the order, enjoy the remaining one half of such holidays with A.

22. In Yunghanns & Ors v Yunghanns & Ors; Yunghanns (1999) FLC 92-836 the Full Court concluded that orders must be construed in the context of the other orders also contained in the consent orders of that date and in the light of the proceedings of which they were the culmination and of the parties thereto. The Full Court continued and, in paragraph 143, said:

“In the absence of any allegation of fraud or mistake or other vitiating circumstances in the formation, drafting or recording of the orders, extrinsic evidence is not admissible to contradict the plain words of the order, or to seek to establish the agreement between the parties which lay behind it: Langford and Coleman (1993) FLC ¶ 92-346 at 79,671  and Harrington v Lowe (1996) FLC ¶ 92-668 ; (1996) 136 ALR 42”.  

23. In Langford and Coleman (1993) FLC 92-346 at 79,670, a case involving property and financial issues and where the husband principally relied upon a literal interpretation of court orders, the Full Court considered the question as to what account could be taken of the subjective intentions of the parties in interpreting consent orders and said:

“The Court cannot take into account whatever agreement might or might not have been reached between the parties which led to the making of the consent orders, and the authority for that proposition is found in the opinion of the Privy Council on appeal from Hong Kong in de Lasala v de Lasala (1980) AC 546 of 560”.

24. That principle was further applied by the English Court of Appeal in Thwaite v Thwaite (1981) 3 WLR 96, at 101.

25. When subparagraphs (d) and (e) of the order of the Registrar were pronounced the child was at pre-school.  He commenced at school in the last week of January 2003.  A proper and common sense reading of that order would have substituted “school” for “pre-school” and we agree with her Honour when she said (AB: 14-15):

”Why the mother could not have simply suggested that it was to be understood that the word preschool was now to be school, is very difficult to understand.  One would have thought that was relatively simple and I can understand that Mr Fooks might well have thought that that was to be the arrangement”.

26. In our view, her Honour did not err in the appellate sense in concluding that the order provided for the father to have contact for half of the school holidays and, during school terms, on alternate weekends and the Friday afternoon and thus she did not err in concluding that the father had not establish a prima facie case in relation to the contraventions alleged in paragraphs 1 and 2 of his application.

GROUND 1.3

27. The father did not have contact to A on Friday, 31 January 2003.  Her Honour concluded that, in the circumstances, however, either the mother’s refusal to allow contact on that day did not amount to a contravention or that, if it did, the mother had a reasonable excuse for so refusing. 

28. Pursuant to the order of Registrar Wilkie the father had, throughout 2002, contact on each Friday after pre-school (sub-paragraphs 1(d) and 1(e) thereof).  He therefore wanted to see A on the Friday in question, namely Friday, 31 January 2003 but the mother refused and there was an incident at A’s new school.

29. Having regard to the notation (5) to the order of the Judicial Registrar, the mother submitted that she understood that contact, including the Friday the contact, would not begin until Friday, 7 February 2003 so that there would be no contact on the weekend after the first week of the new school year.  She gave evidence that she thought that the order of the Judicial Registrar meant that in some way the order made on 12 December 2001 had been superseded.

30. Her Honour found that it was understandable that the mother had that opinion and whilst it was regrettable that A was not able to see his father on the Friday afternoon of his first week at school, the mother’s refusal to allow contact did not amount to a contravention.

31. Her Honour went on to record in her reasons:

“If, as I said before, she did contravene the orders within the meaning of s.70NC her misunderstanding about the arrangements, depending on the interpretation of what happened, certainly provided a reasonable excuse".

32. In our view, it was open to her Honour to conclude that, if the mother contravened the order, she had a reasonable excuse for so doing.  Thus, there is no merit in this ground.

GROUND 2

33. In support of this ground, the father submitted that her Honour failed to provide reasons for refusing the request of the father that the unedited record of proceedings before Judicial Registrar Smith on 7 January 2003 be made available to him. He further submitted that the order of the Judicial Registrar was intended and understood by the parties to produce a contact regime different from that found by the trial Judge and recorded by her at paragraph 6 of her reasons for judgment delivered on 20 May 2003 and that an unedited copy of the record of proceedings would demonstrate the true intention of the parties. As a consequence, he submitted that her Honour erred in finding that if the mother in fact contravened, within the meaning of s.70NC, the relevant order, she had provided a reasonable excuse.

34. The transcript of the hearing before her Honour records the following exchanges:

“MR FOOKS: --- then I will ask your Honour to call for the tapes to be able to listen to the tape and the exact conversation that happened.

HER HONOUR: Mm

MR FOOKS: That I believe your Honour can do.

HER HONOUR: You say that you’ve asked for a transcript, do you, of this?

MR FOOKS: Yes.

HER HONOUR: Yes.  And what, this – the transcript doesn’t reveal what you believe was said?

MR FOOKS: No, it’s not like that.  When one orders a transcript one can have an order of the transcript from the main trial.

HER HONOUR: Mm.

MR FOOKS: The transcript will not deliver to you in any shape or form a typed out version of what words were said when the judgment was being made or orders passed down.

HER HONOUR: I understand.

MR FOOKS: It was during the period of when the judgment was being made and the orders being prescribed, being dictated I suppose ---

HER HONOUR: Mm

MR FOOKS: --- that as your Honour well knows there’s a break in the actual wording of the orders while some conversation takes place, that’s exactly how we came up with the words “noted”.

HER HONOUR: Yes.  But what attempt, Mr Fooks, have you made to attend at the Court and listen to the tape and ask that that part of the matter before the Judicial Registrar be transcribed so that you could present it to the Court?

MR FOOKS: I contacted the transcribing company.

HER HONOUR: Yes.

MR FOOKS: They told me that that was their position, they couldn’t do anything about it legally.

HER HONOUR: Mm

MR FOOKS: And my advice downstairs in the registry was that I had to ask your Honour to – for that to be extracted.

HER HONOUR: It’s a bit late now, isn’t it?  At the end of the hearing when the evidence is concluded.  Yes.  No, well I won’t do that.  Right.  Press on with your submissions.”

35. The father’s application was made during the course of submissions to her Honour after all evidence had been received.  We are not persuaded that in coming to her conclusion her Honour acted, as the father submitted, contrary to the principles of justice.  This ground has not, in our view, been established.

GROUND 3

36. Pursuant to sub-paragraph (h) of the orders of Registrar Wilkie the father was to have contact to A from the completion of the 9.00 a.m. Baptist Church service until 2.00 p.m. on Christmas Day.

37. The father alleged that the mother and others prevented and denied him contact on that day, assaulted him and then drove off with A from the changeover venue.

38. The submissions of the father in support of this ground were that her Honour failed to consider the mother’s actions in not actively promoting contact in accordance with the order and that her Honour gave undue weight to the alleged wishes of “A”.

39. The mother’s submissions were that she had in fact encouraged A to go with his father on the contact changeover and had done all that was reasonable in the circumstances.

40. Her Honour found this to be a more than unfortunate incident.  A particularly telling piece of evidence, as relied upon by her Honour, was that:

“[A] had said to his father when the understandable topic of presents was raised with him, that he could post them to him.  That seems to me to be a child obviously resisting wanting to go to the father, even with the prospects of presents”.

41. This evidence reinforced to her Honour the argument of the mother that A did not want to go on contact on that day.

42. Her Honour correctly identified s.70NC as providing the meaning of “contravened an order”, if and only if:

(a)where the person is bound by the order – he or she has:

(i)     intentionally failed to comply with the order; or

(ii)     made no reasonable attempt to comply with the order.

43. Her Honour concluded that, on this occasion, it would not be correct to say that the mother had made no attempt to comply with the order.  She therefore rejected the submissions of the father “that the breach really occurred prior to the child not being handed over, because the mother made no effort”.  Her Honour emphasised that the background to that situation needed to be understood, that the Christmas Day incident was not an isolated incident and that there had been difficulties leading up to that time.

44. We note that her Honour concluded her reasons as follows:

“30.    In relation, overall, to this matter it can only be observed that although a resident parent, as the mother is, has a positive obligation to provide contact for a child to the other parent, it is not reasonable that that parent forcibly put a child in a position where they are resisting.  It seems, in my view on the whole of the evidence, that the father, on the occasions of Christmas Day and then the attempt to begin the school holidays at the police station, was really expecting the mother to do something that was not in the child's interests and unreasonable.  Overall, I find that there has been no contravention of the orders and I dismiss the husband's (sic) application filed on 27 February 2003." 

45. In our view, it was clearly open to her Honour to conclude that, at the relevant time, A was so upset that it would not have been reasonable for the mother to have taken further steps to require the child to attend on contact on that day.  This ground of appeal, in our view, has not been established.

CONCLUSION

46. As none of the father’s grounds of appeal have been made out, we would dismiss his appeal.

COSTS

47. At the conclusion of the hearing of the appeal, we heard submissions from the parties in relation to the costs of the appeal.  In the event that the appeal was dismissed, the mother sought an order that the father pay certain out-of-pocket expenses incurred by her in the sum of $157.50.  In that event, the father submitted that there should be no order as to costs.

48. Having regard to the submissions of the parties and to the provisions of s.117 of the Act, in our view, the circumstances do not justify the making of an order for costs in favour of the mother.

ORDERS

49. We order:

1. THAT the appeal be dismissed.

2. THAT there be no order as to costs of and incidental to the appeal.

I certify that the preceding 49 paragraphs
are a true copy of the reasons
for judgment delivered by
this Honourable Full Court.



Associate