Fowler & Northwood
[2022] FedCFamC1A 173
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Fowler & Northwood [2022] FedCFamC1A 173
Appeal from: Northwood & Fowler [2022] FedCFamC2F 841 Appeal number: NAA 157 of 2022 File number: NCC 1911 of 2021 Judgment of: AUSTIN J Date of judgment: 24 October 2022 Catchwords: FAMILY LAW – APPEAL – Parenting – Unacceptable risk – Where the father appeals from interim parenting orders providing for the child to only spend time with him under professional supervision – Consideration of single expert report at interlocutory hearing – Assertions of denial of natural justice – Where a judge is not required to expose their thought processes or inclinations for further comment – Asserted errors of principle – Principle in Rice and Asplund (1979) FLC 90-725 – Where both parties conducted the proceedings on the basis that circumstances had materially changed – Admissibility of single expert report – Where no objection was taken to the report and it was exhibited in evidence – Reliance upon contested evidence – Where the primary judge was circumspect about relying upon untested evidence – Inadequacy of reasons – Where the reasons for judgment sufficiently expose how and why the orders were made – Whether result is “plainly wrong” – Where it could not be reasonably contended there was an incongruence between the evidence and the result – No error identified – Appeal dismissed – No order as to costs. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CC, 60CG, 69ZL, 117 Cases cited: Albert & Plowman [2020] FamCAFC 23
Bennett & Bennett (1991) FLC 92-191; [1990] FamCA 148
Cimorelli & Wenlack [2020] FamCAFC 58
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Goode & Goode (2006) FLC 93-286; [2006] FamCA 1346
Lim & Zong (2020) FLC 93-939; [2020] FamCAFC 20
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594; [2011] HCA 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Reid v Lynch (2010) FLC 93-448; [2010] FamCAFC 184
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
Schorel & Schorel (1990) FLC 92-144; [1990] FamCA 58
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 226 CLR 152; [2006] HCA 63
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 58 Date of hearing: 18 October 2022 Place: Newcastle Counsel for the Appellant: Mr Rugendyke Solicitor for the Appellant: Stevens Family Law Counsel for the Respondent: Mr Gardiner Solicitor for the Respondent: Merridy Elphick Lawyers ORDERS
NAA 157 of 2022
NCC 1911 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FOWLER
Appellant
AND: MS NORTHWOOD
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
24 October 2022
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the respondent’s party/party costs of and incidental to the appeal, fixed in the sum of $12,114.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowler & Northwood has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
By an Amended Notice of Appeal filed on 28 September 2022, the father appeals from the interim parenting orders made on 28 June 2022 in respect of the parties’ two children by a judge of the Federal Circuit and Family Court of Australia (Division 2) under Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
In effect, the orders make provision for the mother to have sole parental responsibility for the children (Order 3) and for the children to only spend time with the father under professional supervision, the cost of which was to be borne jointly (Orders 4–7). To achieve that outcome, the primary judge selectively suspended and discharged some prior orders (Orders 1 and 2). The pre-existing order declaring that the children live with the mother was not varied.
For the reasons which follow, the appeal is dismissed.
Background
Orders between the parties in respect of their children were first made under Pt VII of the Act on 26 June 2020 by a judge of the Federal Circuit Court of Australia (as the Court was then known). With the parties’ consent, it was ordered that they would have equal shared parental responsibility for the children, the children would live with the mother, and they would spend substantial time with the father.
Fresh proceedings were commenced by the mother about 12 months later in June 2021, seeking revision of the orders. Her interlocutory proposal was that the children only spend supervised time with the father, at least until a Family Report had been prepared. The father opposed the mother’s application, but he too sought revision of the orders made in June 2020 by the expansion of his involvement in the children’s lives.
The Senior Judicial Registrar entertained the parties’ interim dispute on 1 September 2021 and confirmed the operation of the June 2020 orders, save for the variation of the changeover arrangements so as to require professional supervision of the children’s exchange between the parties.
Procedural orders were made in October 2021 for the procurement of a report from a single expert psychologist (“the single expert”), whose report was furnished to the Court and released to the parties in February 2022.
The single expert reported upon several salient features of the litigation, including these: the June 2020 orders had not quelled the parties’ conflict; the mother commenced fresh proceedings following an unpleasant incident between the parties in June 2021; the children had been referred for assessment and treatment for their anxiety; the children appeared somewhat reluctant to stay in the father’s company when under observation; and the father posed a material risk of harm to the mother and children by his subjection or exposure of them to family violence.
The single expert did not support the father’s proposal for any expansion of the time the children spend with him and instead urged the Court to consider the need for their supervision when with him.
In March 2022, admittedly motivated by the contents of the single expert’s report, the mother ceased to comply with the operative orders and refused to allow the children to spend time with the father unless professionally supervised, to which demand the father reluctantly but willingly temporarily acceded. Contemporaneously, on 23 March 2022, the mother filed an interim application seeking to vary the orders by requiring professional supervision of the children while spending time with the father. He opposed her application. The interim dispute was heard by the primary judge on 18 May 2022, with judgment then delivered on 28 June 2022.
Her Honour made several findings which were central to the outcome.
First, it was found, partially on the strength of the father’s admissions, he had perpetrated family violence. The single expert opined that he posed a risk of harm to the mother and the children on account of his propensity for coercive and controlling behaviour, which opinion evidence the primary judge accepted (at [55]–[56]).
Secondly, her Honour found, by accepting the single expert’s reported factual observations, that the children were somewhat resistant to the father, from which it was implied they did not feel safe or secure in his care (at [57]–[58] and [60]).
Thirdly, her Honour found the younger child’s misbehaviour had abated since the introduction of professional supervision for the time he spends with the father (at [63]–[64]).
The primary judge therefore concluded the imposition of professional supervision was warranted, as an interim measure, to protect the children from the risk of them suffering psychological harm by reason of their subjection or exposure by the father to neglect or family violence (at [65]).
The Appeal
The father prosecuted the grounds of appeal set out in the Amended Notice of Appeal filed on 28 September 2022, subject to the further oral amendment of Ground 3 allowed at the hearing.
Ground 1 – denial of natural justice
This ground complains of the asserted denial of natural justice by reason of the primary judge intimating during the hearing that the outcome should not be dictated by the untested opinions of the single expert, but then subsequently reasoning the existing orders should be varied in line with the mother’s proposal, largely on account of the content of the single expert’s report.
The ground of appeal was particularised in this way:
…[T]he Primary Judge apparently accepted, and indeed asserted, that the interim arrangements could or should not be changed as that change relied on accepting the single expert report which was in dispute and at this interim stage untested.
The Primary Judge appears to have formed a different view after the submissions process and prior to judgment and determined the matter based on issues that were not the subject of submission.
…[T]he [father] [was] denied an opportunity to persuade the Judge to a contrary view…
The father’s complaint needs to be addressed by advertence to the adversarial process, first and foremost by recognising that the single expert’s report was adduced in evidence at the hearing. While the father forecast his generic disagreement with aspects of the report, he was unspecific about the particular ways in which he took issue with it.
The father said only this in his affidavit:
77.There are several areas where I disagree with things stated in the family report, including opinions and conclusions drawn by [the single expert], and factual assertions that [the mother] has made. I intend to respond fully to these issues when I am not subject to limited pages for my Affidavit.
(Affidavit of the father filed 4 May 2022)
During the hearing, the father’s counsel told the primary judge:
[COUNSEL FOR THE FATHER]:- - - The submission is that [the report is] based on assumptions which are in dispute, and it makes opinions which are in dispute, but the assumptions and the opinions will be the subject of testing. …
(Transcript 18 May 2022, p.23 lines 11–13)
It was never elaborated which particular “assumptions”, “opinions”, and “conclusions” of the single expert were challenged. However, it must follow from the omission to mention any challenge to the single expert’s observations of the physical interaction between the children and the parties that they were uncontroversial.
Nonetheless, the single expert report was in evidence and the primary judge was obliged to take its contents into account and provisionally assess its reliability, recognising that the single expert was yet to be tested by cross-examination. Had the primary judge ignored the single expert report merely because unidentified parts of it were under challenge, her Honour would have been at risk of alternate criticism for the discretionary error of failing to take material considerations into account.
Single experts are called as witnesses because their qualifications and experience equip them to provide opinion evidence to the court which is relevant to the determination of the issues in dispute, though their expert opinion evidence is not necessarily decisive. Judicial power to decide the legal dispute always rests in the hands of the trial judge, not the expert witness (Albert & Plowman [2020] FamCAFC 23 at [19]–[22]). No judge is bound to accept or reject the whole or any part of the evidence of a single expert (U v U (2002) 211 CLR 238 at 261). But by the same token, when ostensibly credible evidence is before the court, a judge is expected to heed it. Even though expert opinion evidence is normally untested in an interim hearing, the provisions of the Act expressly require a judge to react to credible evidence concerning risks of harm to which children might be exposed and against which they require protection (Cimorelli & Wenlack [2020] FamCAFC 58 at [80]–[81]; Lim & Zong (2020) FLC 93-939 at [32]–[33]).
As the hearing commenced, these exchanges occurred between the primary judge and counsel:
HER HONOUR: - - - very carefully in order to make a decision in this matter, but your client would have to appreciate, no doubt, that it’s the family consultant’s untested report.
[COUNSEL FOR THE MOTHER]: Yes
HER HONOUR: It’s not a – there’s no magic in it.
[COUNSEL FOR THE MOTHER]: I - - -
HER HONOUR: It has to be treated the same as any other evidence.
[COUNSEL FOR THE MOTHER]: Thanks, your Honour.
HER HONOUR: It has to be evaluated. There may be contested factual issues.
[COUNSEL FOR THE MOTHER]: Yes.
HER HONOUR: She is reliant on the truth and accuracy of what she’s told by the parties.
[COUNSEL FOR THE MOTHER]: Yes.
HER HONOUR: Who knows. But I haven’t read her report in full yet, so I will do that in order to make a decision. And, of course, obviously, on an interim basis, I can’t ignore risks - - -
[COUNSEL FOR THE MOTHER]: Yes.
HER HONOUR: - - - but it will be a question of whether the court is sufficiently concerned to complete – to acquiesce to the mother’s application for the father to have only supervised time. But the point is, too, that the registrar had already considered the matter eight months ago - - -
(Transcript 18 May 2022, p.16 lines 11–42)
(Emphasis added)
Quite properly, her Honour recognised two important things: first, the untested single expert report was not dispositive, but secondly, it was evidence which would nonetheless bear upon the existence of risks which her Honour could not ignore.
Contrary to the particulars of this ground of appeal, the primary judge did not say “the interim arrangements could or should not be changed”, though her Honour did express some wistful unease about having to make a difficult decision on contested evidence in these terms:
HER HONOUR: How can I really evaluate all of the evidence, and the family consultant’s opinion in the light of the evidence when we haven’t had a trial yet?
(Transcript 18 May 2022, p.17 lines 22–23)
The father submits in the appeal that, having foreshadowed his intended challenge to the reliability of the single expert report and having heard the primary judge’s cautionary comments in relation thereto, he expected little weight would be reposed in the single expert report at the interlocutory hearing and he need say little more about it. The submission to that effect was put as follows:
35.In the light of that exchange [in the transcript], those comments by the Judge and the concessions made the Father ought not be criticised for concluding that the Primary Judge was “on board” and further submissions were unnecessary.
(Father’s Summary of Argument filed 22 September 2022)
While expectations harboured by a litigant, created by the remarks of a judge, may affect the practical content of the requirements of procedural fairness, the test remains one of unfairness, not merely whether there has been departure from a representation. Not every departure from a stated intention necessarily involves unfairness, even if it defeats an expectation (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 12–13). The primary judge’s comments implied the untested single expert report would not be decisive but, on the other hand, her Honour did not say it would carry no weight at all. The father’s expectations over-reached the primary judge’s representations.
Importantly, once critical issues in the proceedings are known to the parties, a judge is not required to give the parties a running commentary upon his or her provisional views as the case proceeds, nor expose his or her thought processes or inclinations for further comment by the parties before the necessary decision is made (Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9]; SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [48]).
At the conclusion of the hearing, the primary judge reserved judgment and, upon reflection, was seemingly persuaded the content of the single expert report deserved more weight than her Honour first thought. However, contrary to the father’s belief, the primary judge was not then obliged to re-list the matter, forecast to the parties her altered inclination to attribute greater weight to the untested evidence of the single expert, and give them another chance to persuade her Honour either for or against that course. They had their chance. This ground fails.
Grounds 2, 3 and 4 – errors of principle
These grounds collectively assert the primary judge’s errors of principle by the approach taken to the mother’s interim application for variation of the existing orders. It is contended her Honour erred by failing to properly apply the law (Grounds 2 and 4) and by relying upon the challenged but as yet untested evidence of the single expert psychologist (Ground 3).
Grounds 2 and 4 were primarily argued on the premise that the principle in Rice and Asplund (1979) FLC 90-725 precluded the primary judge from varying the existing orders without any anterior finding of some material change in circumstances in the interregnum – of which there were allegedly none.
The argument is misconceived because both parties conducted the proceedings on the basis that circumstances had indeed materially changed since the last orders were made in June 2020. Each party now seeks the variation of those orders, which they can only do by contending the variations sought are warranted by changed circumstances. The mother commenced fresh proceedings by filing an Application in July 2021 seeking to constrict the time the children spend with the father under the existing orders, whereas the father filed a Response in October 2021 seeking orders to expand the amount of time the children spend with him, together with a host of other orders dealing with an assortment of other issues.
True it is, only the mother wanted the existing orders varied on an interim basis, but the father cannot take refuge behind an argument in the appeal that circumstances are unchanged when he maintains the countervailing application for substantially revised parenting orders. The issue between the parties therefore simply devolved to whether the changed circumstances justified an interlocutory variation of the existing orders or whether the decision about variation ought await the upcoming trial when all of the evidence is tested. There was no reason based in legal principle why the orders could not be varied on an interlocutory basis. Rather, that was a question the answer to which was governed by the evidence.
The hearing before the primary judge entailed the determination of the mother’s contested application for interim relief. Significantly, it was not a threshold hearing of an application made by the father to dismiss the mother’s pending application for fresh final relief due to an asserted inability to demonstrate any changed circumstances, consonantly with the principle in Rice and Asplund (Marsden v Winch (2009) 42 Fam LR 1 at [40]–[56]; Miller & Harrington (2008) FLC 93-383 at [72]–[82]). The father could not sensibly make any such threshold application, given his own pending proposal for fresh final relief to vary existing orders.
The ancillary proposition put by the father in support of these grounds is that it was not open for the primary judge to go behind the existing orders made in June 2020, since the parties’ assent to those orders, providing for the children to spend substantial amounts of unsupervised time with him, reflected their mutual admission that the orders were made in the children’s best interests, thereby subsuming all antecedent complaints of parental misconduct or incapacity.
The father’s counsel submitted to the primary judge:
[COUNSEL FOR THE FATHER]: then, on the family report itself, or the single expert’s report, to answer the question, is this, by itself, given that it’s challenged, so concerning that, without a hearing, the existing arrangements, which have been confirmed, would be overturned largely on allegations that predate the consent orders? So if you look – when you look to the single expert’s report, a lot of the material that’s the subject of assumptions and opinions predates the original consent orders.
(Transcript 18 May 2022 p.30 line 44 to p.31 line 2)
(Emphasis added)
In the appeal, the father’s counsel submitted:
6.The final orders subsumed various allegations made by each of the parties prior to that date. It could not be logically contended that allegations which predate the final orders 26 June 2020 could amount to any significant evidence in relation to unacceptable risk of abuse.
…
43.The error of principle extends to an apparent failure to consider the significance of allegations predating the making of the final orders and indeed predating the making of the interim orders and the consequence of the curial process which arguably subsumes or deals with the competing allegations including the mother’s allegations of abuse, mental health and other allegations against the father.
(Father’s Supplementary Summary of Argument, filed 22 September 2022)
This argument is also misconceived because it assumes the “issue” of the children’s best interests was definitively resolved up to the point at which the orders were last made with the parties’ consent in June 2020, or alternatively when the Senior Judicial Registrar varied those orders in September 2021. However, no “issue” was immutably resolved. The principle of “issue estoppel” does not apply to parenting proceedings conducted under Pt VII of the Act (Reid v Lynch (2010) FLC 93-448 at 85,102–85,104; Schorel & Schorel (1990) FLC 92-144). The statutory imperative of children’s best interests always being the paramount consideration is not overridden by principles of estoppel.
Given the mother consented to the orders made in June 2020, the primary judge was certainly entitled to evaluate any evidence adduced by her about the father’s alleged misconduct or parental incompetence prior to her assent to the orders with a healthy degree of scepticism, because she willingly overlooked such concerns when she agreed to the orders allowing the children to spend substantial time with the father. But that is a quite different proposition from her Honour being obliged to disregard such evidence, as the father explicitly submitted.
As already mentioned, the Act obliged the primary judge to heed any tangible risk of harm (for example: ss 60B(1)(b), 60CC(2)(b), 60CC(3)(j), 60CC(3)(k) and 60CG), despite the evidence being contentious, and there was undoubtedly evidence of risk before the Court.
As it was, the mother only adduced evidence of the father’s conduct after the orders were made in June 2020, evoking her concern about the children’s welfare in his care and explaining why she wanted the orders varied. The father disputed her evidence, but that did not render it inherently unreliable. It was only the single expert report which covered allegations of the father’s historical conduct at times before the orders made in June 2020. The single expert’s opinion evidence only became available in February 2022, after the varied interim orders were made in September 2021. Such evidence piqued the primary judge’s concern – untested as it was – and was the subject of Ground 3, which contends in part for an error of principle by the primary judge’s “approach to the application of the Single Expert Report”.
The father expressly contended the primary judge had to disregard the single export report because it was either “inadmissible or had no weight”, which submission is rejected. The single expert report was admissible because it was relevant and no objection was taken to it. The report was admitted into evidence (Exhibit A). Moreover, there was no principled or logical basis to contend the report must have nil weight, as distinct from the primary judge having to be cautious about the probative weight attributed to the report when it was yet to be tested.
Of course the primary judge needed to be circumspect about relying upon contested evidence, but her Honour appears to have been so. In reliance upon both the content of the single expert report and the father’s admissions, the primary judge found the father had committed family violence and posed some risk of physical harm to the mother and children (at [56]), though a more significant risk of “emotional and psychological” harm to them (at [65]). Her Honour also found, relying upon the apparently unchallenged visual observations of the single expert, the nature of the children’s resistant physical interaction with the father was “concerning”. Finally, her Honour found, relying upon the mother’s evidence, that the younger child’s “emotionally dysregulated behaviours” had stabilised since he was spending less time with the father. Those conclusions collectively persuaded the primary judge to restrict the children’s time with the father.
It was common ground that some professional supervision reports, which were not tendered in evidence because of the parties’ agreement about their content, tended to show the children’s visits with the father were going well, with no “concerning” comments or behaviour made or demonstrated by either party. However, such conceded facts sat uneasily with the single expert report, containing observations of the children’s reluctance to be with the father despite encouragement by the mother.
Another judge might, on balance, have reposed more weight in the concessions made about the content of the supervision reports and less weight in the challenged but still untested single expert report, but that is not the measure by which the success of an appeal from a discretionary judgment is gauged. No submission by the father revealed any factual, legal or discretionary error by the primary judge’s acceptance of and reliance upon the single expert report or any other parts of the evidence.
Ground 5 – inadequate reasons
This ground complains of the inadequacy of reasons, which was particularised to mean that the reasons for judgment:
(a)lack any reference to legal principles which govern the variation of existing orders;
(b)are “slim” and inadequate to explain such a significant alteration to the existing orders;
(c)fail to identify the extent to which there was a change of circumstances to warrant variation of the existing orders; and
(d)fail to explain the finding about the existence of an unacceptable risk of harm.
In effect, this ground simply seeks to attack the primary judge’s provisional findings that the father poses a risk of harm to the children and the mother, which risk should be temporarily ameliorated by curtailing and professionally supervising the children’s interaction with him.
The complaint is answered by observing the findings were open on the evidence adduced, which evidence the primary judge was free to accept. Reliance upon the evidence of risk was not foreclosed merely because the father disputed it. As the evidence was untested, the findings were necessarily provisional and are not binding upon the parties in the future. No doubt they will be re-visited at trial when the witnesses are cross-examined.
The reasons for judgment sufficiently expose how and why the primary judge made the orders granting to the mother sole parental responsibility for the children and imposing protective conditions upon their interaction with the father, which is all that is required (Bennett & Bennett (1991) FLC 92-191 at 78,267). The reasons need not refer to every piece of evidence (Fox v Percy (2003) 214 CLR 118 at 132), as the father seemed to at least imply was necessary by his emphasis on the parts of the evidence which he perceived favoured his case.
The flavour of the father’s submissions in the appeal was a demand for perfection from the primary judge in the interlocutory adjudicative process, but that is unrealistic. The conduct of interim disputes is an “abridged process” in which the scope of the enquiry is “significantly curtailed” (Goode & Goode (2006) FLC 93-286 at [68]). In this instance, following a full day of other forensic work, the interim hearing began at 4.02 pm and finished at 4.58 pm. While the reasons for judgment were not delivered ex tempore, they still relate to interim orders and so could be given in short form pursuant to statutory authority (s 69ZL), as the primary judge correctly observed (at [1]).
Ground 6 – result is plainly wrong
This ground contends the result was “plainly wrong”, as the children’s expansive relationships with the father under the former orders were curtailed to only a couple of supervised hours each week, supposedly without good reason.
In essence, the father contended it was impossible for the primary judge to find on the available evidence that he posed an unacceptable risk of harm to the children. His counsel submitted to the primary judge that “there’s no unacceptable risk of abuse…articulated…in the material”, but there plainly was. The mother gave evidence of the parties’ conflict since the orders were last made in June 2020 and the single expert gave opinion evidence to the effect that the father posed a high risk of “emotional and psychological” harm to both the children and the mother. The father disputed the reliability of such evidence, but it was nevertheless admissible, admitted, and open to acceptance.
For the reasons already given, the provisional findings made by the primary judge, upon which the orders were premised, were open. It could not be reasonably contended that there existed such incongruence between the evidence and the result that there is no rational alternative but to infer appealable error. The father’s submissions fell considerably short of demonstrating the primary judge failed to properly exercise the discretion entrusted to her Honour, which is the relevant test for this ground of appeal (Lovell v Lovell (1950) 81 CLR 513 at 519).
Disposition
The appeals fails for lack of merit.
In that event, the mother sought costs on a party/party basis, which she quantified at $12,114 (omitting odd cents). No issue was taken with the quantum of the claim.
The father opposed his liability for any costs order, but he ought meet the mother’s needlessly incurred expense as the appeal was wholly unsuccessful (s 117(2A)(e)), neither party was legally aided (s 117(2A)(b)), and his financial circumstances are apparently not such as to preclude the order (s 117(2A)(a)). The father is apparently a recently discharged bankrupt, but he engaged his own legal representatives in the appeal from which it may be reasonably imputed that he has income, assets or financial resources available to help meet legal expenses.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 24 October 2022
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