GM & RKM

[2005] FamCA 194

[2005] FamCA 194

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE

Appeal No.  SA 37 of 2004
  From No. MLF5918 of 1994
IN THE MATTER OF:

GM

Appellant Wife

- and -

RKM

Respondent Husband

REASONS FOR JUDGMENT

BEFORE:  Rowlands, Holden & May JJ
HEARD:  19^th day of October 2004
JUDGMENT:            23^rd day of March 2005

APPEALS - from decision of Family Court judge against a discretionary order - adequacy of reasons

CHILDREN - residence

1. This was an appeal against some of the orders made by Morgan J on 31 March 2004.  Specifically, the orders appealed from are as follows:

   “2.That the husband and the wife retain joint responsibility for the long term care, welfare and development of the children of the marriage, M born the 25th April 1987, N born 7th October 1988 and C born 18th July 1990, save that the husband have sole responsibility for medical or educational issues involving the children.

   3.That the children reside with the husband and he have sole responsibility for their day to day care, welfare and development.

   4.That the children remain and continue to the conclusion of their secondary education at their respective Grammar Schools.

   5.That the wife be and is hereby restrained from:

   5.2obtaining any medical, dental or ancillary treatment and/or assessment of the children whatsoever including but not limited to obtaining same from any medical practitioner, dental practitioner, psychologist, psychiatrist, pharmacist, physiotherapist, chiropractor, social worker, audiologist or any similar person whatsoever SAVE THAT in the event that the children are with the wife and require emergency treatment the wife first notify the husband on his pager and only in the event that the wife is unable to contact the husband the wife be permitted in such circumstances to take the children to the Casualty Department of the Royal Children’s Hospital;

   5.3telephoning, attending, corresponding with or in any way contacting the principal, staff or teachers of the children at the Grammar School.”

2. At the conclusion of oral submissions of counsel for the appellant wife, we indicated that we did not wish to hear from counsel for the respondent husband or the child representative and dismissed the appeal with costs.  We indicated that we would give reasons for judgment at a later date.  These are those reasons.

Background

1. The husband is an orthopaedic surgeon who was born in November 1955.  The wife is a dentist and law student who was born in March 1956.  The parties commenced cohabitation in March 1981 and married in July 1981.  The parties separated in either 1992 or 1994.  Proceedings relating to the children commenced in May 1994 and they culminated in orders made by Justice Graham on 11 April 1996.  His Honour ordered inter alia that the children forthwith change residence and live with the husband and that the wife have defined contact.  In May 1997 Graham J restrained the wife from bringing further applications without the leave of the Court.  That order remains in place. 

2. In September 1997 there were further proceedings with respect to contact.  On 21 January 2000 the present proceedings commenced when the wife filed an application for leave to issue proceedings for residence.  Leave was granted on 30 June 2000. 

The judgment of the trial Judge

1. After setting out what she correctly described as the history of the “tragic” proceedings, her Honour set out in some detail the difficulties that had arisen with respect to contact.  She observed, that ever since the orders had been made by Graham J the wife had persisted in seeking that the children change schools and was expressing concerns about the children’s education and their care. 

2. In 2000 the child representative arranged for the children to see a clinical psychologist, Ms TM, for cognitive testing.  She has been involved with the family ever since and prepared two reports, one dated 21 July 2001 and a second dated 19 July 2003.

3. Her Honour noted the parties’ proposals in the following terms:

   “9.The wife’s proposal was that all three children reside with her and the husband have alternate weekend and school holiday contact.  She maintained that proposal and sought orders to that effect despite the fact that M will soon be 17.  Her case was that the husband had alienated the children from her and that he was responsible for the breakdown in contact.  She said that the children should live with her because she was better able to provide for their physical care.  She alleged that the husband had neglected their education and that they were not doing well at school and would do better in her care.  She countered the clear evidence that the children wished to reside with their father by saying that they had had no experience of living with her since 1996 and therefore had no basis for comparison.

   10.The husband’s proposal was that the children continue to reside with him.  He proposed that there be no orders for specific contact.  His case was, relying on the evidence of Ms [TM], that contact was more likely to take place and be beneficial to the children if they were not subjected to the pressure of defined orders.  His case was that contact had broken down because the wife constantly either changed arrangements, refused to agree to contact at times it suited the children or did not avail herself of contact.  His case also was that the wife inappropriately discussed the proceedings with the children, she lied to them and subjected them to unreasonable pressure about matters such as their schooling.

   11.The Child Representative’s proposal was that that (sic) all three children should reside with the husband.  In relation to contact his proposal was that there should be no orders about M.  He expressed through his Counsel a preliminary view that there should be no orders for defined contact for the girls.  In final submissions he supported the husband’s proposal.”

4. Her Honour canvassed in considerable detail Ms TM two reports which she described as “detailed and thorough”.  She described her as an excellent witness when cross-examined.  She stated that her answers were well considered and objective and that she was at pains to be fair to both parents.  She rejected the wife’s allegation that Ms TM was biased against her. 

5. Her Honour then set out in some detail important aspects of the cross-examination of Ms TM. 

6. Her Honour then considered the issue of credit stating:

   “61The husband’s case was that the breakdown and (sic) contact was caused by the wife’s behaviour, unreliability and the difficulties in arranging contact with her.  In general terms he said that the wife’s approach was to put difficulties in the way of any proposals put forward by him, the professionals or the children.  He said that when he took the children overseas for holidays it was at their request and after negotiations for contact had broken down.  As I have said the wife’s case was that the husband had deliberately frustrated contact.  I do not propose to make detailed findings about the numerous allegations of the wife with respect to the many occasions when contact did not take place or was unsatisfactory.  I do not need to do so because of the detailed and expert evidence of Ms [TM] who spent so much time with the children which included attempting to assist in making arrangements for contact.  However, I do need to make a finding as to which version is on the balance of probabilities to be accepted.  I will not find that the wife has been a “serial liar” in the proceedings before me.  However I do for reasons I now set out find that that (sic) with respect to the two versions I prefer the evidence of the husband.”

7. After setting out the applicable law, her Honour turned to a consideration of those matters she was required to consider pursuant to the provision of s 68F(2) of the Family Law Act (1975) (Cth).

8. She described the wishes of the children as “a most significant factor”.  She summarised their wishes as follows:

   “71.M is almost 17 and expresses a consistent, unequivocal wish to reside with his father.  He wishes to have a relationship with his mother and it seems there has been some improvement in it now as he has matured.  C and N have also consistently said they are happy living with their father.  They also wish to see their mother but do not wish to have specific orders for contact.  At 15 ½ and 13 ½ they are of any age when their wishes should be given significant weight and respected.  All the children wish to be together.  I am satisfied that their wishes are soundly based.  As Counsel for the husband submitted the children are expressing these wishes because they are happy and secure in their father’s household.  In so far as contact is concerned they are expressing wishes because the present situation is not bringing them happiness and it is clear that the present orders which have never really been implemented continue to put the children under great pressure.”

9. She described the relationship between the husband and each of the children as “excellent and meaningful”.  She found that despite the difficulties in their relationship with their mother, they dearly love her.

10. In determining the likely effect of any changes in the children’s circumstances her Honour said:

    “73.The evidence is that the children are well cared for and provided for both materially and emotionally in their father’s household.  I am overwhelmingly satisfied that a change in residence would not be in their best interests.  While the status quo is not determinative, the status quo in this case is one in which the children are happy and thriving.  The wife has persisted with agitating to change the children’s school.  Not only do the children not wish that but the evidence is that they are all doing well at school both socially and academically and that the school provides the girls with additional assistance where required.  A change in those circumstances would be nothing short of devastating for the children.”

11. Her Honour then turned to a consideration of whether there was any practical difficulty of the children having contact with their mother.  She concluded:

    “74.There is an unusual aspect to this factor in this case.  There are no practical difficulties involved in contact.  It has been very difficult for contact to be arranged because, despite the best efforts of Ms [TM] and the Child Representative the wife does not respond or objects to each suggestion.  As the children said to Ms [TM] when they propose a date to her it is never convenient.  Ms [TM’s] unequivocal evidence was that the best prospect for removal of these difficulties was that there be no orders for defined contact.”

12. Considering the capacity of each parent to provide for the needs of the children, including emotional and intellectual needs and the attitude to the children and the responsibilities of parenthood demonstrated by each of the parties, her Honour concluded:

    “75.For reasons which I will not repeat the husband has demonstrated a significant capacity to care for all the needs of the children.  He freely conceded that it was difficult for him when the children were first place (sic) in his care.  However, he took on the responsibilities of parenthood.  That he has discharged those responsibilities well is demonstrated by what the children said to Ms [TM] about his parenting and by the fact that the children are thriving in all respects with him.

    76.There are real concerns about the wife.  I am satisfied that she has the children’s best interests at heart.  However, as Counsel for the Child Representative submitted, the history of this matter demonstrates that she has a limited capacity to understand the needs and desires and actions of the children.  The fact that she has persisted in an application for residence which includes M is indicative of the attitude to the children.  She is very critical of the children.  She was extremely critical of M although she conceded that he had improved as he matured.  She has been very critical to the children of their school performance.  This is in stark contrast to the attitude of the husband which is to say that all the children are doing their best having regard to their individual capacities.  The wife’s attitude to contact orders has been that they place an obligation on the children to see her at specified times no matter what their individual wishes and commitments are.  As Counsel for the Child Representative submitted one cannot be confident that the wife has the ability to assimilate and consider appropriately the children’s wishes when they are not “in tandem with her own”.  It is a truly tragic aspect of this case that the wife has never accepted the orders of Justice Graham.  Her psychiatrist Dr [E] said that.  This was meant that ever since she has focused on trivial complaints about the husband’s care of the children such as that they had head lice.  Her evidence was that she spent hours when the children were with her dealing with this.  She made the complaints to the various bodies to which I have referred and much time was spent by her taking the children to interviews with various professionals.”

13. Her Honour concluded that there was no evidence of any physical abuse at the hands of either parent, however, she noted that there was clear expert evidence about the psychological impact of the continuation of the conflict between the parents.

14. Finally, her Honour considered whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the children.  She described this as being “overwhelmingly the imperative in this matter”.  She went on to say:

    “78.…The overriding concern is that there must be an end to this litigation.  This was the expert opinion of Ms [TM].  As I have said the wife’s attitude has been that the children must comply with the orders for contact.  This is an unusual case because all children wish to see their mother but not in the context of defined orders.  It is unusual to place the responsibility for arranging contact on the children.  The evidence is that in recent times this has in fact been happening and the children have been arranging ad hoc meetings with their mother.  The wife said that these were secret or clandestine.  The husband, however, said that he knew about them and so did Ms [TM].  In my view it is preferable in this matter that the children be relieved of the pressure of orders.  If orders are in place it is highly likely that the wife will continue to put pressure upon the children.”

15. Her Honour then concluded:

    “79.I am satisfied on the balance of probabilities by reason of the evidence which I have considered and the principles to which I have referred that the children’s best interests require an order in terms of the proposals of the husband and the Child Representative.”

Grounds of appeal

1. The grounds of appeal set out in the Notice of Appeal filed 22 June 2004 were as follows:

   “1.That Her Honour failed to give any or adequate reasons in support of order 2 of the orders made on 31^st March 2004.

   2.That Her Honour failed to give any or adequate reasons in support of order 4 of the orders made on the 31^st March 2004.

   3.That Her Honour failed to give any or adequate reasons in support of order 5.2 of the orders made on 31^st March 2004.

   4.That Her Honour failed to give any or adequate reasons in support of order 5.3 of the orders made on the 31^st March 2004.

   5.That in relation to order 3 of the said orders Her Honour failed to give sufficient weight to the Husband’s attidue (sic) and past behaviour in relation to the Wife’s contact with the children.

   6.That in relation to order 3 Her Honour placed too much weight on the Wife’s inability to exercise contact in or around 1998.

   7.That Her Honour failed to provide a satisfactory mechanism to ensure that the two youngest child (sic) develop a relationship with the Wife.

   8.That Her Honour failed to evaluate and consider the benefit of the two youngest children having contact with the Wife as supported by a defined contact order.

   9.That there was insufficient evidence before the Court to enable Her Honour to make orders in accordance with order 2 of the said orders insofar as those orders provide that the Husband have sole responsibility for medical and educational issues involving the children.

   10.That there was insufficient evidence before the Court to enable Her Honour to make orders in accordance with orders 5.2 and 5.3 of the said orders.”

Applicable principles

1. This is an appeal against a discretionary order.  The principles applicable in an appeal against such an order are well known and need not be restated here; (see Gronow v Gronow (1979) 144 CLR 513, House v The King (1936) 55 CLR 499, Mallet v Mallet (1984) FLC 91-507.

2. As the first four grounds of appeal attack the adequacy of her Honour’s reasons, it is appropriate that we refer to the following passage from the decision of the Full Court in Bennett and Bennett (1991) FLC 92-191 at 78,266-267.

   “Counsel for the wife urged that there was a failure by her Honour to give adequate reasons for judgment, and that this, of itself, amounted to an error of law. In this regard he relied upon the line of New South Wales Court of Appeal decisions commencing with Pettitt v Dunkley (1971) 1 NSWLR 376, and including Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247. In the latter case, McHugh JA said that without the articulation of reasons, a judicial decision could not be distinguished from an arbitrary decision. His Honour took the view that the requirement for reasons serves at least three purposes, namely, to enable the parties to see which of their arguments had been understood and accepted as forming the basis of a Judge's decision; secondly, to further judicial accountability; and thirdly, to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future.

   In Public Service Board of NSW v Osmond (1985-1986) 159 CLR 656, Gibbs CJ gave qualified support to the principles established by Pettitt v Dunkley. In Palmer & Ors v Clarke & Ors (1989) 19 NSWLR 158, the New South Wales Court of Appeal, consisting of Kirby P, Samuels and Priestley JJA, again held that a failure to give adequate reasons was an appellable error of law which, of itself, was sufficient to require a judgment to be set aside.

   In Sun Alliance Insurance Ltd v Massoud (1989) VR 8, the Full Court of the Supreme Court of Victoria, consisting of Fullagar, Gray and Tadgell JJ, followed the principles established by the New South Wales Court of Appeal. Gray J, who delivered the principal judgment, said, at 18:

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

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

   
   
   

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

   
   
   

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

   We think that the test propounded by Gray J is a particularly useful one, and one which also applies to discretionary judgments. In Maday and Maday (1985) FLC 91-636, Fogarty J, in a judgment with which the other members of the Court (Emery and Murray JJ) agreed, took the view that these principles clearly did apply to discretionary judgments and, in particular, judgments in custody matters.

   Finally, in relation to discretionary judgments, reference may be made to the judgment of Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown & Anor (1985) 3 All ER 119, which affirmed the principle that a Judge delivering a discretionary judgment should set out his or her reasons.

   In our opinion, if adequate reasons are not given in a custody proceeding, it becomes impossible for an appellate court to properly examine the decision appealed from.”

1. The Full Court went on to say:

   “In the absence of adequate reasons, the Full Court is not obliged to uphold a judgment merely because the result may be said to fall within the wide ambit of the Judge's discretion. In general, the appellate Court should be able to discern either expressly or by implication the path by which the result has been reached.”

Submissions on appeal

1. Ground 1 asserts that her Honour failed to give any or adequate reasons to justify the making of order 2.  It is clear from the written submissions of counsel for the appellant that the complaint is against that part of the order which excludes the wife from the joint responsibility of decision making concerning medical and educational issues relating to the two younger children.  We begin by making the observation that the orders made by her Honour and the reasons for the making of those orders has to be viewed in the context of ten years of disagreement between the parties.  Her Honour observed that the wife for a long period of time persisted and still persists in seeking that the children change schools.  She noted the wife’s allegation that the husband had neglected their education and that they were not doing well at school and would do better in her care.

2. Her Honour noted the following from the second report of Ms [TM], namely:

   a)N did not raise any concerns about her school or peer relationships;

   b)all of the children were “having their best year ever” at school;

   c)the two youngest were “concerned about changing schools and the possibilities of changes occurring in their lives”;

   d)she reported:

   “55.The children’s school reports indicate that they are doing well at school.  N and C require special assistance and they are receiving it.  The husband’s attitude was that the children were doing their best and that was all that could be expected.  The children found the pressure placed upon them by their mother in relation to their school work difficult.  I do not propose to go into the detailed allegations which the wife made in relation to earlier school reports.  The most recent reports confirm that the children are doing well.  I will consider Ms [TM’s] evidence about this later.”

   e)she observed: 

   “The wife has persisted with agitating to change the children’s school.  Not only do the children not wish that but the evidence is that they are doing well at school both socially and academically and that the school provides the girls with additional assistance where required.”

3. Given the long history of agitation by the wife to change the children’s schools and the other evidence set out in her Honour's reasons for judgment and given her Honour’s comment that the overriding concern was that there must be an end to litigation, we would have thought for our part the reason why her Honour made the order that she did with respect to education is self evident.

4. Upon a reading of her Honour’s judgment as a whole we are also of the view that the reasons why she made the order that she did with respect to medical issues involving the children is also self evident.  This is particularly so when one considers the following passage from her Honour’s judgment:

   “76.…As Counsel for the Child Representative submitted one can not be confident that the wife has the ability to assimilate and consider appropriately the children’s wishes when they are not “in tandem with her own”.  It is a truly tragic aspect of this case that the wife has never accepted the orders of Justice Graham.  Her psychiatrist Dr [E] said that.  This was meant that ever since she has focused on trivial complaints about the husband’s care of the children such as that they had head lice.  Her evidence was that she spent hours when the children were with her dealing with this.  She made the complaints to the various bodies to which I have referred an much time was spent by her taking the children to interviews with various professionals.”

5. Ground 2 complains that her Honour gave no or no adequate reasons for ordering that the children continue their education at their respective Grammar Schools.  We refer to the observations made by her Honour set out earlier in these reasons for judgment with respect to the children’s education.  We also refer to the passage of her Honour’s reasons for judgment that we have reproduced in paragraph 14 of these reasons.  We are satisfied that her Honour’s remarks in that passage constitute adequate reasons for the making of the order that she did.  In any event, her Honour, no doubt for the sake of clarity, discharged all extant orders in relation to the children of the marriage.  Order 4 merely reinstated the order made by Justice Graham of 11 April 1996. 

6. Grounds 3, 4, 9 and 10 can conveniently be dealt with together.  They complain that her Honour gave no, or no adequate reasons for restraining the wife from:

   a)obtaining any medical, dental or ancillary treatment and/or assessment of the children; and

   b)telephoning, attending, corresponding with or in any way contacting the principal, staff or teachers of the children at the Grammar Schools.

7. The orders relating to injunctions were made against the background of the wife’s refusal to accept the judgment of Graham J.  She has persisted in her attempts to change the children’s schools and has maintained her criticism of the husband’s attention to their education and the educational performance of the children. 

8. In August 1997 she complained to the Community Police Service and the Department of Human Services that the children were at risk in the husband’s care with the result that the children were traumatised by subsequent investigations. 

9. She misrepresented alleged results of cognitive tests carried out by Ms TM to the children.  She spent much time taking the children to interviews with various professionals.

10. It is clear from her Honour’s reasons that she was acutely aware of the need to relieve the pressure the children were experiencing and the need to make orders least likely to lead to further proceedings.  Although her Honour does not expressly state why she granted the injunctions in her reasons, it is obvious, in our view, why she did so when one reads her reasons for judgment in the contextual background that we have described and therefore we are able to discern, at least by implication, the reason her Honour made the order that she did. 

11. Grounds 6, 7 and 8 are all directed towards order 3, which provides that the children reside with the husband and he have sole responsibility for their day to day care, welfare and development.

12. The first complaint is that her Honour failed to give sufficient weight to the husband’s attitude and past behaviour in relation to the wife’s contact with the children.  This ground is difficult to understand because her Honour found that the difficulties that had been experienced over contact were of the wife’s making rather than the husband’s, as is evident from the passage from her Honour’s judgment that we have quoted in paragraph 10 of these reasons. 

13. We regard that passage is a complete answer to the argument being advanced by counsel for the wife. 

14. The next complaint is that her Honour placed too much weight on the wife’s inability to exercise contact in or around 1998.  In her reasons, her Honour said:

    “8.…The wife was given liberty to apply for leave to apply to discharge Justice Graham’s orders.  In August 1998 interim orders were made by Justice Dessau which provided for contact for one long weekend in each school term, and for half of the school term holidays.  Her Honour also ordered that the husband provide the specific dates for contact pending a final hearing.  Contact never took place in accordance with those orders.”

15. Her Honour mentioned the lack of contact that took place as was provided for in the interim orders of August 1998 as part of the historical background to the proceedings before her.  We cannot see that she otherwise placed any weight on that fact. 

16. The wife complains that her Honour failed to provide a satisfactory mechanism to ensure that the two youngest children developed a relationship with her.  We find this ground entirely without merit.  The fact of the matter is that, over a period of approximately ten years, every effort had been made by the Court, the children’s representative and Ms TM to put in place a satisfactory contact regime, without success, largely because of the attitude of the wife.  As expressed in her reasons for judgment, her Honour placed considerable reliance upon the reports and evidence of Ms TM.  She said in her reasons:

    “43.I now consider the important evidence which Ms [TM] gave in cross-examination by Counsel for the Child Representative as what orders should be made.  She said that in the four years that she had known the children their views about residence had not changed.  She said that an order for structured contact would not be workable for M.  She was asked whether, and given that the girls wanted to see their mother structured contact orders should be made for them.  She replied;

    “It’s something that I’ve really struggled with and spent a lot of time thinking about from different angles in different ways.  I’ve come to the opinion that I can’t see any form of orders actually working to the benefit of the children in this case.”

    44.She gave several reasons for this.  Firstly, there had been a number of attempts to get contact to succeed but there had always been difficulties and it had broken down.  Secondly, she said that given the ongoing difficulties and the issues the children had raised in the end orders had actually acted to put extra pressure on the children and particularly the girls.  She was concerned that orders had become a source of pressure and anxiety for the children.  When asked what the level of anxiety was Ms [TM] replied that in different sessions the children had broken down in her office because they had been “just so distressed” about contact and the fear that it may become structured so that it was not tenable for them.  They were also concerned about their relationship with their mother if she was confronted with their wish not to live with her and their concerns about contact.  She said they were consistently very anxious about such issues.  The girls had always said that they wanted some form of contact.  N, however, often felt responsible for the relationship.  Ms [TM] repeated this several times.  N said that certainly she should go on contact with her mother because it was the “fair thing to do”.  She suggested going on holiday with her mother because that would be fair.  Then it transpired that she had concerns about the threats and that she would be “stuck” and would not be able to get home.  The third reason was that the girls wished to have a relationship with their mother but in N’s case it was mixed up with wanting to look after her mother.

    45.Ms [TM] was asked how contact could be structured in such a way as to take some of the pressure off the children and allow them to develop their relationship with their mother outside the litigation process.  She replied that the children would like to see that.  They had always told her that they would prefer not to be going through the court process and they became very anxious at such times.  The girls were very worried about what could happen.  They were concerned about changing schools and the possibility of changes occurring in their lives and what could happen to their relationship with their mother.

    46.The fourth reason Ms [TM] gave for recommending that there be no order for defined contact was that the girls had always in various ways maintained contact with their mother such as by telephone and e-mail.  They talked about times when they wanted to see their mother and tried to organise it.  She said that from the children’s point of view they would continue to try to see their mother.  She referred to the fact that M had had some contact with his mother recently.  She said it was important to the girls and would continue to be important to them to have a window open in terms of their relationship with their mother and that they would work hard to ensure that.”

17. We find nothing in her Honour’s reasons to indicate that her Honour was not aware that it would be of benefit to the two youngest children to have contact with their mother.  On the contrary, it is apparent from her reasons for judgment that she made the orders that she did because of the recommendations of the court expert and the wishes of the children and in recognition that not to make a defined contact order was likely to be the only way that the children could develop a meaningful relationship with their mother. 

18. We were of the view that none of the grounds of appeal had any merit and we therefore dismissed the appeal.

Costs

1. We made an order that the appellant pay the respondent’s costs and the costs of the child representative because, in our view, the appeal never had any prospect of success.  It was immediately apparent to us that the orders made by her Honour were a proper exercise of her discretion.

I certify that the preceding 42 paragraphs are a true copy of the reasons for judgment delivered by this Honourable Court

Associate