Greer & Bedelia
[2009] FamCAFC 136
•4 August 2009
FAMILY COURT OF AUSTRALIA
| GREER & BEDELIA | [2009] FamCAFC 136 |
| FAMILY LAW - APPEAL – From a contravention finding of a Federal Magistrate – Whether the standard of proof applied need be identified – Uncontested evidence established a prima facie case – Standard was impliedly considered in reasons – Whether s. 70NAE of the Family Law Act 1975 (Cth) needed to be identified – No evidence adduced to trigger application of that section – Whether reasons given were sufficient – Appeal dismissed. FAMILY LAW - APPEAL – From an order for a bond of a Federal Magistrate – Whether reasons given for imposing a bond were sufficient – Re-exercising bond not pressed – Requirements for a bond discussed – Obligations of judicial officer under s. 70NEC(5) discussed. FAMILY LAW - APPEAL – From variation to a parenting order made by a Federal Magistrate – Whether the relevant provisions of the Act were identified – Whether reasons given were adequate – No submissions made opposing the variation – May infer variations were consented to. FAMILY LAW - APPEAL – From a costs order of a Federal Magistrate – Whether the relevant provisions of the Act were identified – Whether reasons given for exercising discretion were sufficient – Appellant’s submissions regarding costs sparse – Reasons given were adequate. |
| Family Law Act 1975 (Cth), ss. 70NAE, 70NAF, 70NEC(5), 70NFE |
| Elspeth, Mark & John v Peter (Penalty and Costs) (2007) 37 Fam LR 696 |
| APPELLANT: | Ms GREER |
| RESPONDENT: | Mr BEDELIA |
| FILE NUMBER: | BRC | 1219 | of | 2007 |
| APPEAL NUMBER: | NA | 48 | of | 2008 |
| DATE DELIVERED: | 4 August 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, Warnick & Barry JJ |
| HEARING DATE: | 22 April 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 24 April 2008 |
| LOWER COURT MNC: | [2008] FMCAfam 652 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Middleton |
| SOLICITOR FOR THE APPELLANT: | Family Law Solutions |
| COUNSEL FOR THE RESPONDENT: | Mr Galloway |
| SOLICITOR FOR THE RESPONDENT: | Vince Catanzaro Solicitor |
Orders
The appeal filed 17 November 2008 against the orders of Federal Magistrate Purdon-Sully delivered 24 April 2008 be dismissed.
The Respondent file and serve written submissions on the issue of costs of the Appeal within seven (7) days of this judgment.
The Appellant file and serve written submissions on the issue of costs seven (7) days after receipt of the Respondent’s submissions on costs.
IT IS NOTED that publication of this judgment under the pseudonym Greer & Bedelia is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 48/2008
File Number: BRC1219/2007
| Ms GREER |
Appellant
And
| Mr BEDELIA |
Respondent
REASONS FOR JUDGMENT
On the 24 April 2008 Federal Magistrate Purdon-Sully made findings that the Appellant, Ms Greer, had contravened parenting orders made by consent in the Federal Magistrates Court at Brisbane on 16 March 2007.[1] Thereafter her Honour made the following further orders (which summarily provide):
i)by way of penalty the Mother was ordered to enter into a bond to be of good behaviour for a period of 12 months, without surety;
ii)the Mother was directed to attend a post separation parenting program conducted by Relationships Australia after she had undergone an assessment process and been found suitable for such program;
iii)that the terms of the existing parenting orders pursuant to s.70NBA of the Family Law Act 1975 (“the Act”) be varied;
iv)that the Mother pay the Father’s costs of and incidental to the application for contravention filed 20 September 2007 including reserved costs.
[1] Appeal Book (Volume 1), p 7.
The Appellant by an amended notice of appeal filed 17 November 2008, appeals against each of the orders made by her Honour.[2] The Appellant seeks that the orders made by her Honour on 24 April 2008 be discharged, that the application for contravention sanctions be remitted for rehearing by a Federal Magistrate other than her Honour and that there be no order as to costs.
[2] Appeal Book (Volume 1), p 1.
The Respondent Father is 34 years of age and the Appellant Mother 33 years of age. The child, A, was born in May 2006. It is common ground that the parties have not at any stage resided together. The Father currently resides in the Darling Downs and works as a farm hand on his parent’s property. He has three other children from two other relationships, one of whom is a child with his current partner. The Mother resides in the Sunshine Coast hinterland in separate accommodation attached to her parent’s property. She has one other child who is nine years of age. The Mother is in part time work.
Original consent orders of 17 march 2007[3]
[3] Order of FM Spelleken dated 16 March 2007 (appended to the application for contravention filed by the Respondent on 20 September 2007); Appeal Book (Volume 1), p 79.
At the time interim orders were made before Federal Magistrate Spelleken each party was represented by Counsel. In summary form, the orders provided for a graduated increase in the time the Father was to spend with his then 10 month old daughter. Initially the time was to be for a few hours on consecutive days in a three week period at a designated Contact Centre. Thereafter the Father was to spend time with his daughter on an overnight basis in each three week period from 9.00 am on the first day until 3.00 pm on the second day.
father’s application for contravention
The Father filed an application for contravention on 20 September 2007.[4] Appended to that application is a copy of the order of 16 March 2007 to which reference has been made, as well as a contravention summary document. That document summarises the contraventions in the following terms:
[4] Appeal Book (Volume 1), p 75.
[Mr BEDELIA and Ms GREER]
CONTRAVENTION SUMMARY
| Time Provided For in Order dated 16th March 2007 | Actual time spent with [A] | Missed Time with [A] |
| 29th & 30th March 2007 8 hours | Nil | 8 hours |
| 19th & 20th April 2007 8 hours | 2 hours | 6 hours |
| 10th & 11th May 2007 8 hours | Nil | 8 hours |
| 31st May & 1st June 2007 14 hours | 2 hours and 48 minutes | 11 hours 12 minutes |
| 21st & 22nd June 2007 14 hours | 1 hour 52 minutes | 12 hours 8 minutes |
| 12th & 13th July 2007 14 hours | 6 hours | 8 hours |
| 2nd & 3rd August 2007 14 hours | Nil | 14 hours |
| 23rd & 24th August 2007 14 hours | Nil | 14 hours |
| 13th & 14th September 2007 14 hours | Nil | 14 hours |
| 108 hours | 12 hours 40 minutes | 95 hours 20 minutes |
material before the federal magistrate
At the hearing before the Federal Magistrate on 19 March 2008, the Father relied on affidavits filed on 20 September 2007 and 23 November 2007.[5] The Mother relied on an affidavit filed by leave at the hearing.[6]
[5] Appeal Book (Volume 1), pp 85 and 127 respectively.
[6] Affidavit of Ms Greer, filed by leave on 19 Mar 2008; Appeal Book (Volume 1), p 61.
On the application of Counsel for the Father at the hearing before her Honour significant passages of the Mother’s affidavit were struck out. No complaint is made as to the material excised from that affidavit.
At the outset of the hearing her Honour put the particulars of each of the contraventions to the Mother who indicated she relied on a reasonable excuse for not complying with the orders on each occasion.
In the course of cross examination the Mother was asked by her Honour[7]:
Well, let me understand this. Your sole defence to this application is on any particular occasion that either you were ill or [A] was ill?---That’s right.
[7] Appeal Book (Volume 2), p 172.
No challenge was made to the Father’s evidence. He was made available for cross examination but was not required. The Federal Magistrate thereupon found a prima facie case established in relation to each of seven contraventions.[8]
[8] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶19; Appeal Book (Volume 1), p 22.
Her Honour found that the contraventions for 10 and 11 May 2007 were not established as the Mother had provided a medical certificate covering this period (the third complaint).[9] In addition, her Honour found there was no evidence to establish a contravention for the ninth complaint covering the period 13 and 14 September 2007.[10]
[9] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶33; Appeal Book (Volume 1), p 24.
[10] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶17 and 18; Appeal Book (Volume 1), p 21 and 22.
No challenge was made by the Father to the findings made by her Honour in this regard.
The Mother was required for cross examination. No evidence in chief was adduced from her. At the conclusion of the cross examination there was no
re-examination.
At the conclusion of the hearing her Honour ordered written submissions. The written submissions were lodged by Counsel for the Father and dated 9 April 2008 and 10 April 2008.[11] The submissions in reply on behalf of the Mother are dated 24 April 2008.[12]
[11] Appeal Book (Volume 1), pp 33 – 48.
[12] Appeal Book (Volume 1), pp 30 – 32.
Findings by the Federal Magistrate regarding contraventions
As we have indicated in paragraph 11, two of the contraventions were not established and as there is no cross-appeal, in one sense, nothing further might need to be said about these alleged breaches. However, because of the way in which the Federal Magistrate structured her judgment, it is useful to consider why she dismissed these particular breaches.
It also needs to be recalled that, as we have set out in paragraph 10, a prima facie case had been established by the Father in relation to each of the seven contraventions and the matter proceeded on the basis that the onus was on the Mother to establish a reasonable excuse for not complying with the orders on each occasion.
10 and 11 May 2007
The Mother’s evidence was that A had been ill before this visit, and that she had told the Father and the contact centre about this on 8 May 2007. In late April the Father received a letter from the Mother’s lawyers seeking some financial assistance for her travel expenses from her residence to the contact centre and had his lawyers respond. Receiving no response to that, he presumed he would be spending time with A on 10 and 11 May and travelled to the contact centre. When he arrived he found that A was not booked in on those two days.[13]
The Mother, the Federal Magistrate found, had obtained a medical certificate on 4 May and despite some complications about annexing this material to her affidavit the Federal Magistrate found:[14]
Be that as it may, it is clear that [A] was ill on that date, and I find that the mother has afforded a reasonable excuse on this particular occasion.
She noted that it was unfortunate that the Father had had to travel a long distance to spend time with A accompanied by two of his young children in the belief that contact was to take place, but went on to say:[15]
…the mother’s discourtesy to the father is really an issue separate from whether or not she is able to advance a reasonable excuse, and I give her the benefit of the doubt in this regard and find that she did so in respect of this charge.
[13] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶14; Appeal Book (Volume 1), p 20.
[14] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶15; Appeal Book (Volume 1), p 20.
[15] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶16; Appeal Book (Volume 1), p 20-21.
13 and 14 September 2007
In relation to 13 and 14 September 2007 the Federal Magistrate found that the Father had failed to file evidence in support of this alleged contravention.[16] She noted the conundrum provided for her by the fact that despite this lack of supporting evidence, no objection was taken by the Mother to the fact that a prima facie case had been made out, and in any event the Mother denied that she had contravened on the basis of a reasonable excuse, but then said in evidence she had made the child available. The Federal Magistrate posed the question of whether the onus shifted from the Father to the Mother in those circumstances but resolved that problem on the basis that:[17]
Given the quasi criminal nature of these proceedings, which exposes the mother to potentially serious sanctions depending upon whether I find the charges proved, I am not prepared to find that the mother contravened the order in respect of that particular charge on that particular occasion.
[16] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶17; Appeal Book (Volume 1), p 21-22.
[17] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶18; Appeal Book (Volume 1), p 22.
The Remaining Charges
As to the remaining charges, the Federal Magistrate made some general comments before turning to the particularity of each of the subsequent alleged breaches.
§ She agreed with the submission that she “would be left with the impression that the respondent had, and has, no real investment in conforming to the order and is motivated instead by a number of personal grievances irrelevant to [A] that she would express through denial of [A]’s right to contact.”[18]
§ “…the mother appears to harbour grievances, real or perceived, against the father and she is unable to separate her own unresolved relationship issues with the father from [A]’s right to spend time with him.”[19]
§ The Father’s application filed 20 September 2007 first came before the Federal Magistrate on 29 October 2007 when the Mother sought an adjournment, which was granted. Notwithstanding the intervening months, and the fact that the proceedings alleged some nine contraventions, it was incumbent upon the Mother to place some evidence before the Court to enable the learned Federal Magistrate to determine reasonable excuse, as she bore that onus.[20]
§ The Mother was represented by a lawyer in the first proceedings, and by a lawyer at the hearing.[21]
§ A lot of the Mother’s evidence was struck out, “leaving a paucity of material evidence on excuse”.[22]
§ “…no explanation was afforded as to why, if there were health issues to do with her and/or [A], something central to excuse as the evidence unfolded, that this evidence was not before the Court”.[23]
§ “Further corroboration of that was not placed before the Court”.[24]
§ “it was clear from the mother’s evidence under cross-examination that…the affording of time between the child, [A], and the father was of little, if any, importance to her and would take second place in terms of her arrangements including…going away for periods of time for her own purposes.”[25]
§ The Mother was “a most unimpressive witness”.[26]
The learned Federal Magistrate then turned to consider each of the charges.
[18] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶21; Appeal Book (Volume 1), p 22.
[19] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶22; Appeal Book (Volume 1), p 22.
[20] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶23-24; Appeal Book (Volume 1), p 22-23.
[21] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶24; Appeal Book (Volume 1), p 22-23.
[22] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶25; Appeal Book (Volume 1), p 23.
[23] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶25; Appeal Book (Volume 1), p 23.
[24] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶25; Appeal Book (Volume 1), p 23.
[25] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶26; Appeal Book (Volume 1), p 23.
[26] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶26; Appeal Book (Volume 1), p 23.
29 and 30 March 2007[27]
[27] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶28-30; Appeal Book (Volume 1), p 23-24.
The learned Federal Magistrate found that the Mother had relied upon the contact centre to arrange the intake interview, but found that it was her obligation to follow-up and get herself organised to ensure this was done to enable the regime of time contemplated to commence. She found that if for some reason there were problems in doing that due to illness, then the Mother needed to respond in an appropriate way by organising alternative arrangements with the Father. She found the Mother’s evidence in cross-examination was at times confusing and unsatisfactory and did not find that a reasonable excuse had been made out.
19 and 20 April 2007[28]
[28] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶31-32; Appeal Book (Volume 1), p 24.
Because the intake session had not taken place, the Father only saw A on 20 April and for a truncated period of time. The Federal Magistrate found that the reason that he was unable to do so was because of the Mother’s failure to arrange her earlier interview. The Federal Magistrate found that the Mother blamed the contact centre but was satisfied that the fault lay with the Mother and did not find this evidence constituted a reasonable excuse.
31 May and 1 June 2007[29]
[29] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶34; Appeal Book (Volume 1), p 24.
The Federal Magistrate found that the Mother did not proffer a reasonable excuse in relation to her lateness or in relation to A being ill. She found that the Mother’s evidence left her in little doubt that her compliance with the order was a low priority as far as delay was concerned on the first day, and offered no evidence in relation to A being ill the following day. The Federal Magistrate found that the Mother appeared to have no understanding that if there were problems, what courtesy she should extend to the Father, such as contacting him by phone or extending some make-up time, given that she knew he was travelling a great distance to see the child.
The Federal Magistrate did not find a reasonable excuse made out.
21 and 22 June 2007[30]
[30] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶35; Appeal Book (Volume 1), p 24-25.
The Mother had alleged that she was unwell, however the learned Federal Magistrate found that if the Mother was unwell, and noting her evidence that she was “delusional” from taking a pain-killer, and found that if the Mother was tired and could not drive then she should have contacted the Father at the earliest and informed him of that fact and then suggested some make-up time. The learned Federal Magistrate found that the Mother seemed to again place responsibilities on the contact centre, who she found was a facilitator of time between the parents only and it was not their primary obligation to act as some conduit between the parents or relieve her of responsibilities under the order. The Federal Magistrate thus found that the reasonable excuse was not made out.
12 and 13 July 2007[31]
[31] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶36; Appeal Book (Volume 1), p 25.
On this occasion the Mother had asserted that A was unwell and that she had informed the contact centre. The Federal Magistrate found that the Mother’s evidence on this issue was again unsatisfactory and that the Father was required to send text messages to the Mother frequently because he could not get on to her on the telephone. The Federal Magistrate accepted his evidence on this point and noted that some of the difficulties in this matter were that the Father could not usually speak to the Mother on the telephone. In particular, the Federal Magistrate noted that no medical certificate was produced in relation to A’s ill-health and, although the Mother seemed to blame her lawyer, found that if a certificate existed it was never sent to the Father or his lawyer and no make-up time was offered. The Federal Magistrate found on this occasion that no reasonable excuse was made out.
2 and 3 August 2007[32]
[32] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶37; Appeal Book (Volume 1), p 25.
In relation to this charge the learned Federal Magistrate did not accept the Mother’s evidence and found it on this point not to be credible. The excuse related to the Mother’s evidence that she had drawn an inference from the Father’s message to her to “give his girl a kiss” that he was not intending to see the child. The learned Federal Magistrate found that if that was her belief, then she should have telephoned or sent a text message to the Father to confirm it and further informed the Father that she was going away. The Mother agreed that she did not offer make-up time and the learned Federal Magistrate found that she had not made out a reasonable excuse.
23 and 24 August 2007[33]
[33] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶38-39; Appeal Book (Volume 1), p 25-26.
The learned Federal Magistrate did not accept the Mother’s excuse as being reasonable. The Mother had alleged that she was recovering from an operation and could not drive. The learned Federal Magistrate said:[34]
even if I was prepared to accept that, her evidence is that her mother helped her with driving in any event.
She concluded by summarising, as she had at the commencement of her findings, that a feature of the case was the Mother’s preparedness to remove herself from her responsibility to take all reasonable steps that she needed to take by deflecting that responsibility to others; that she did not produce medical evidence to support her claims of incapacity; and no make-up time was offered. The Federal Magistrate found that the Mother’s evidence was inconsistent with the letter she sent to the Father on 13 August telling him that she would not be providing contact with A, and the Federal Magistrate did not accept the Mother’s evidence.
The learned Federal Magistrate then imposed the penalty as set out in paragraph 1 of these reasons.
[34] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶38; Appeal Book (Volume 1), p 25-26.
grounds of appeal
The amended grounds of appeal are in the following terms:
(1)That the learned Federal Magistrate erred in the exercise of her discretion in failing to identify and apply the appropriate standard of proof in finding that the contraventions had occurred.
(2)That the learned Federal Magistrate erred in the exercise of her discretion in failing to identify and apply the appropriate standard of proof in finding that there was no reasonable excuse for the alleged contraventions.
(3)That the learned Federal Magistrate erred in the exercise of her discretion by failing to identify and apply s.70NAE in finding that there was no reasonable excuse for the alleged contraventions.
(4)That the learned Federal Magistrate erred in the exercise of her discretion by failing to give any or any adequate reasons for a finding of fact that there was no reasonable excuse.
(5)That the learned Federal Magistrate erred in exercising her discretion by failing to give any or any adequate reasons for imposing the bond.
(6)The learned Federal Magistrate erred in exercising her discretion by varying the parenting orders and in particular as follows:
a.The learned Federal Magistrate failed to identify and apply the relevant provisions of part VII of the Family Law Act (1975) (“the Act”) in deciding to vary the parenting orders;
b.The learned Federal Magistrate failed to give any adequate reasons for varying the parenting orders;
c.The learned Federal Magistrate failed to identify and give any or any proper considerations of s.70NEB (6) of the Act when deciding not to adjourn the proceedings to allow either party to apply for a further parenting order;
d.The learned Federal Magistrate placed no weight or inappropriate weight on the evidence in relation to the age of the child and any likely affects upon her of the orders being made;
e.The learned Federal Magistrate placed no weight or inappropriate weight on the evidence of the distance between the parties when making the order;
f.The learned Federal Magistrate placed no weight or inappropriate weight on the evidence of the bond between the child and her sibling when making the order;
g.The learned Federal Magistrate had no regard or insufficient regard to the effects on the child of having only two (2) weeks holiday with her mother and sibling.
(7)The learned Federal Magistrate erred in exercising her discretion by failing to properly explain the bond pursuant to s.70NEC (5).
(8)That the learned Federal Magistrate erred in the exercise of her discretion by not providing reasons or any adequate reasons for deciding not to seek the advice of a Family Consultant prior to making an order that the mother attend a Post Separation Parenting Program.
(9)Alternatively the learned Federal Magistrate erred in the exercise of her discretion by not giving consideration to seeking the advice of a Family Consultant prior to making an order for the mother to attend a Post Separation Parenting Program.
(10)The learned Federal Magistrate erred in exercising her discretion by failing to identify and apply the relevant provisions of the Act when making an order for costs.
(11)In the alternative, the learned Federal Magistrate failed to give any or any adequate reasons for the making of a costs order.
ground 1
That the learned Federal Magistrate erred in the exercise of her discretion in failing to identify and apply the appropriate standard of proof in finding that the contraventions had occurred.
At the hearing of the Appeal, Counsel for the Mother accepted the onus of proof in establishing whether a contravention had been established was on the balance of probabilities.
As previously noted the Father was not required for cross examination and no submissions were made on behalf of the Appellant in relation to the issue of establishment of a prima facie case.
In circumstances where the evidence of the Father is before the Court on an uncontested basis and is not inherently improbable it would be perverse on the part of the learned Magistrate not to find a prima facie case made out on the balance of probabilities.
It is difficult to appreciate how the standard of proof is relevant in a situation such as the present where the Father’s evidence is before the Court on an unchallenged basis. Such evidence clearly indicates the Father had not spent time with his daughter in accordance with the terms of the orders.
In any event, if the Federal Magistrate applied the incorrect test it could only have been in applying a stricter standard, namely the criminal standard which would be to the Appellant’s advantage.
For the above reasons we see no merit in ground 1 of the Amended Notice of Appeal.
Ground 2
That the learned Federal Magistrate erred in the exercise of her discretion in failing to identify and apply the appropriate standard of proof in finding that there was no reasonable excuse for the alleged contraventions.
In the summary of argument document lodged by Counsel for the Mother it was submitted by use of words such as “quasi criminal” and by reference to individual contraventions as “charges” it could be inferred her Honour had applied the stricter criminal standard of proof when assessing whether the
Mother had a reasonable excuse in relation to each of the remaining contraventions.[35]
[35] Summary of argument for Appellant filed 16 January 2009 at ¶1 and 5.
Counsel went so far as to suggest it was an error on the part of her Honour in not specifying the standard of proof she applied.[36]
[36] Summary of argument for Appellant filed 16 January 2009 at ¶9.
We are unable to draw any such conclusion nor do we accept an inference could be drawn that the incorrect standard of proof has been applied.
Counsel for the Father in written submissions lodged prior to the delivery of her Honour’s reasons for judgment clearly indicated proof as to the establishment of a reasonable excuse was on the balance of probabilities.[37]
[37] Submissions for Respondent dated 9 April 2008 at ¶14; Appeal Book (Volume 1), p 38.
At paragraph 26 of such submissions he noted[38]:
26.Contravention applications are not easily made. Firstly they must conform, being quasi criminal in nature, to fairly rigid requirements, both of substance and of form. Next, relevantly, a Respondent need show only on the low onus that he or she had a reasonable excuse to interrupt time spent with the child. …
It is apparent from a reading of the reasons for judgment her Honour had considered those written submissions. The legislation is quite specific at s.70NAF that the standard of proof is the balance of probabilities. We find no reference in her Honour’s reasons which would indicate her Honour had applied a more stringent standard. We reject any suggestion that the failure to specify the standard of proof, of itself, amounts to appealable error. There is no basis for accepting her Honour may have applied the criminal standard of proof other than in the somewhat tenuous links suggested.
[38] Submissions for Respondent dated 9 April 2008 at ¶26; Appeal Book (Volume 1), p 42.
We see no merit in this ground of appeal.
Grounds 3 and 4
That the learned Federal Magistrate erred in the exercise of her discretion by failing to identify and apply s.70NAE in finding that there was no reasonable excuse for the alleged contraventions.
That the learned Federal Magistrate erred in the exercise of her discretion by failing to give any or any adequate reasons for a finding of fact that there was no reasonable excuse.
Counsel for the Mother submitted, in general terms, that her Honour’s judgment did not provide sufficient reasons explaining why her evidence as to reasonable excuse was rejected.[39]
[39] Summary of argument for Appellant filed 16 January 2009 at ¶25.
In the course of her reasons her Honour made, inter alia, the following observations on the reliability of the Mother’s evidence: [40]
[40] Reasons of FM Purdon-Sully dated 24 April 2008; Appeal Book (Volume 1), p 15, 22 and 26.
7.However, the evidence before me found the mother seriously wanting with regard to her compliance with the order and her preparedness to ensure that the child was available to spend time with her father in accordance with her agreements to do so, not only in the consent orders but also the undertaking that she gave, albeit to another Court.
…
20.It was put by the father’s counsel in his written submissions at para. 22 that “the respondent’s evidence could be characterised as petty and fault-finding, self-justifying and selfish. It was, however, always revealing. And what it revealed, it is submitted, was a respondent who did not value [A]’s right to spend time with, and be cared by, her father.” I agree with that submission.
21.It was further put to me at para. 24 of the written submissions that I would be left with the impression that the respondent had, and has, no real investment in conforming to the order and is motivated instead by a number of personal grievances irrelevant to [A] that she would express through denial of [A]’s right to contact. I also agree with that submission.
22.In my view, the mother appears to harbour grievances, real or perceived, against the father and she is unable to separate her own unresolved relationship issues with the father from [A]’s right to spend time with him. In my view she would benefit from counselling.
…
39.A feature of this case was the mother’s preparedness to remove herself from her responsibility to take all reasonable steps that she needed to take, by deflecting that responsibility to others be it [the contact centre] who did not pass on a message or did not act professionally, or in this case the paternal grandmother who, she said, she told she could collect [A], although I appreciate that this is not accepted by the father. No medical evidence again was produced to support the mother’s claims of incapacity. No make up time was offered. Her evidence was inconsistent with the letter she had sent to the father on 13 August that she would not be providing contact with [A] and I do not accept her evidence.
In addition, the Federal Magistrate considered each of the charges individually as we have described in paragraphs 15 to 25 of these reasons.
Given the learned Federal Magistrate’s findings about the Mother’s attitude and the unsatisfactory nature of her evidence, it was incumbent upon her to establish as an objective fact to the requisite standard that the facts upon which she asserted the excuse on each particular occasion could be established and that, if established, they provided a “reasonable excuse” pursuant to the terms of s. 70NAE.
Her Honour was only required to consider the terms of s. 70NAE if she was satisfied the Mother had adduced evidence upon which reliance could be placed which triggered the terms of the section. The Mother could have produced medical certificates from her general practitioner, led evidence from the treating medical practitioner, subpoenaed records from the medical practice, produced records from the Contact Centre or led evidence from her parents to corroborate her claims of illness on each and every occasion on the part of herself or the child.
Having elected not to adopt this course she must bear the consequences in circumstances where the judicial officer may not be accepting of her account of events.
Asked to address the proposition that, in respect of each of the contraventions where she found the Mother had no reasonable excuse, the learned Magistrate had been entitled not to accept the Mother's evidence as to excuse, Counsel for the Mother, Mr Middleton referred only to the fifth contravention. In respect of that contravention, Purdon-Sully FM said:
In relation to the fifth charge, if [A] was ill or the mother unwell - I
think the word she used in her evidence was that she was "delusional" from
taking a pain killer, and if she was tired and could not drive, then the
mother should have contacted the father at the earliest and informed him of
that fact and then suggested some make up time. She seemed to again
place her responsibilities on [the contact centre]. They were, however, a
facilitator of time between the separated parents only. It was not their
primary obligation to act as some conduit between the parents or to relieve
her of her responsibilities under the order.
Mr Middleton argued that where her Honour had, at the start of the quoted paragraph said, “If [A] was ill or the mother unwell” the reader could not ascertain whether her Honour had accepted the Mother’s evidence or not. In the light of what her Honour said about the Mother’s evidence elsewhere in her reasons, we think there is no real doubt that in the paragraph in question her Honour had rejected the Mother’s explanation, but had gone on to consider that, even if the Mother’s explanation as to A’s health was accepted, for the reasons the Federal Magistrate set out, she did not consider that the Mother had any reasonable excuse. Whether that consideration was adequate or not was not argued before us and is not a question that we think we need to decide.
In relation to the assertion that her Honour failed to give adequate reasons for a finding of fact that there was “no reasonable excuse”, we note that not only did her Honour make findings in general terms, as previously quoted, but in paragraphs 27 to 39 of her reasons, she addresses the events of each contravention and makes specific findings.[41]
[41] Appeal Book (Volume 1), p 23 and 26 respectively.
By way of example, in relation to the seventh contravention covering the period of 2 and 3 August the Mother’s affidavit was in the following terms:[42]
49.In relation to paragraphs 38, 39 and 40, I had informed the applicant that I would be away on work and visiting a friend and would be available after the trip on 9 and 10 August for contact.”
50.I had inferred from the applicant’s text concerning “give my girl a kiss from dad”, that he did not intend to exercise contact on the 3 August 2007.
[42] Affidavit of Ms Greer, filed by leave on 19 Mar 2008; Appeal Book (Volume 1), p 71.
In relation to this evidence Her Honour observed:[43]
37.In relation to the seventh charge, I do not accept the mother’s evidence. Her evidence on this point was not credible. I am not sure why the mother would infer from the father sending a text message that she was to:
give his girl a kiss
that he was not intending to see the child. If that was her belief then she should have telephoned or texted the father to confirm this. The mother says she was away visiting people and she also says that she was sick. She says that she told the father she was going away. She agreed that she did not offer make up time.
[43] Reasons of FM Purdon-Sully dated 24 April 2008 at ¶37; Appeal Book (Volume 1), p 25.
We are satisfied the reasons given by her Honour in relation to the issue of reasonable excuse for each of the contraventions were adequate. We see no merit in grounds 3 and 4.
ground 5
That the learned Federal Magistrate erred in the exercise of her discretion by failing to give any or any adequate reasons for imposing the bond.
In accordance with the direction of her Honour at the conclusion of the hearing Counsel for the Father made submissions on penalty in the following terms:[44]
30.The Applicant accepts that the Respondent has the larger part of the care of [A]. He pays child support, and it was part of the evidence that there is a review of the assessment under way. The Applicant does not suggest that the Respondent has much in the way of funds to pay as a penalty and of course does not suggest that there be any kind of custodial sentence.
31.Instead the Respondent (sic) proposes, with respect, that compliance with this or any future order, be secured by a Bond, which, as s.70NEC provides, may be required to be secured and may have an accompanying surety.
[44] Submissions for Respondent dated 9 April 2008; Appeal Book (Volume 1), p 43.
In written submissions in response on behalf of the Mother no reference is made to the issue of an appropriate penalty. In the course of her reasons her Honour said at paragraph 41:[45]
41.In terms of penalty, the father asks that the mother be placed on a bond. He seeks a costs order, and a variation of the primary order. Section 70NEB of the Act sets out a range of possible orders that I can make, including the following: sending a person to a post-separation parenting program; ensuring that they enter into a bond in accordance with s.70NEC; and making a costs order. Pursuant to Subdivision B of the Act, I am also able to vary the primary order.
[45] Reasons of FM Purdon-Sully dated 24 April 2008; Appeal Book (Volume1), p 26.
At paragraphs 51 and 53 her Honour stated:[46]
[46] Reasons of FM Purdon-Sully dated 24 April 2008; Appeal Book (Volume 1), p 28.
51.I propose to order that the mother enter into a bond. In this regard, I propose that the mother enter into a bond for one year and that that bond be without surety and without security.
…
53.I also propose that the mother be placed on good behaviour.
In circumstances where the Father advocated the imposition of a bond it is incumbent on the Respondent to make submissions on the issue, if it be opposed, detailing the reasons for the objection. It is not necessary for reasons to be extensive if the issue to be determined has not been the subject of contention.
ground 7
the learned Federal Magistrate erred in exercising her discretion by failing to properly explain the bond pursuant to s.70nec(5).
Orders imposing the bond were made by her Honour in the following terms:[47]
(1)That pursuant to section 70NEB of the Family Law Act 1975 the mother enter into a Bond and arrange with the Court to attend upon a Registrar of this Court no later than 4:00 pm on Friday 9 May 2008 for the purpose of signing the Bond.
(2)Not relevant.
(3)That the mother’s solicitors are to hereby explain the terms of this Order and the meaning and effect of a bond along with the consequences to the mother of her not complying with the bond, and confirm such advice in writing to the mother and file and serve an affidavit outlining their compliance with this Order and annexing a copy of the letter sent to the mother in compliance with this order by 4:00 pm on Friday 2 May 2008.
[47] Orders of FM Purdon-Sully dated 24 April 2008; Appeal Book (Volume 1), p 8.
In accordance with her Honour’s orders the Mother’s solicitor filed an affidavit annexing a copy of a letter dated 29 April 2008 he had forwarded to his client explaining the meaning and effect of a bond together with the consequences to the Mother of her not complying with the bond.[48]
[48] Affidavit of the mother’s solicitor; Appeal Book (Volume 1), p 52.
On 26 May 2008 the Mother was granted a stay in relation to paragraph (1) of the order of 24 April 2008.[49]
[49] Orders of FM Purdon-Sully dated 24 April 2008, O 1, Appeal Book (Volume 1), p 8.
The significance of this is to this point in time the Mother has not entered into a bond as required by her Honour’s orders. Had she done so the bond would have lapsed by effluxion of time within the next week.
At the conclusion of his submissions Counsel for the Father did not press for an order that this Court, in dealing with the appeal, direct the Mother to enter into a bond. There was no complaint by the Father as to the Mother’s compliance with the orders of 24 April 2008 in the intervening period.
In circumstances where neither party seeks the re-imposition or recognition of a bond it is unnecessary to consider this ground of appeal further.
Before departing this aspect we take the opportunity to make some observations on the requirements for making an order for a bond.
Section 70NEC provides:
70NEC Bonds
(1) This section provides for bonds that a court may require a person to enter into under paragraph 70NEB(1)(d).
(2) A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
(5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language
likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond—fails to act in accordance with the bond.
Section 70NFE is in the following terms:
70NFE Bonds
(1) This section provides for bonds that a court may require a person to enter into under paragraph 70NFB(2)(b).
(2) A bond is to be for a specified period of up to 2 years.
(3) A bond may be:
(a) with or without surety; and
(b) with or without security.
(4) The conditions that may be imposed on a person by a bond include (without limitation) conditions that require the person:
(a) to attend an appointment (or a series of appointments) with a family consultant; or
(b) to attend family counselling; or
(c) to attend family dispute resolution; or
(d) to be of good behaviour.
Note: Before imposing a condition under this subsection, the court must consider seeking the advice of a family consultant about the services appropriate to the person’s needs (see section 11E).
(5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond—fails to act in accordance with the bond.
In the course of written submissions Counsel for the Mother made reference to the recent decision in Elspeth, Mark & John v Peter (Penalty and Costs)
(2007) 37 Fam LR 696 in the following terms:
31.…the Full Court discussed the history of bonds and the context of less serious breaches. After giving consideration to the need to explain bonds pursuant to s. 70NEC (5) the Court was of the view that:
The only effective way of now dealing with a proven contravention is to require the mother to make contributions towards the father’s costs and to remind the mother any further proven contraventions may be dealt with under Subdivision F of Division 13A of Part VII and may attract a fine or period of imprisonment.
32.Subsequent to that decision Dawe J in Herman v Victor [[2008] FamCA 462] held that whilst the Full Court decision was binding on the Court he (sic) considered the possibility of distinguishing the matter on grounds that he (sic) could explain to the mother that if she fails to enter into the bond she may face the consequences applicable to a breach of the Court order under s. 112AD.
33.Having outlined his (sic) considerations of this explanation he held:
“Notwithstanding these considerations the Full Court decision appears to remove these options. If a bond were an option available to the Court then I consider the placing of the Mother on a bond with conditions would be an appropriate consequence. However the Full Court decision reduces the available consequences.”
34.Whether the intent of the Full Court in that decision was to remove the option of a bond is perhaps a moot point, what is clear is that adequate reasons should be given if making an order for a person to enter into a bond and, if that order is to be made, then an explanation pursuant to the terms of s. 70NEC (5) should be provided prior to making the order.
In view of the position adopted by Counsel for the Respondent it was not necessary for this Court to canvass the issues raised in the submissions concerning the decision of Elspeth, Mark & John v Peter (Penalty and Costs) and we do not propose to do so.
We do however wish to make observations in relation to subsection (5) at
s. 70NFE:
70NFE Bonds
...
(5) If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person, in language likely to be readily understood by the person:
(a) the purpose and effect of the proposed requirement; and
(b) the consequences that may follow if the person:
(i) fails to enter into the bond; or
(ii) having entered into the bond—fails to act in accordance with the bond.
In the instant case her Honour directed the Mother’s solicitors to write to their client explaining the purpose and effect of the bond.[50]
[50] Orders of FM Purdon-Sully dated 24 April 2008, O 3; Appeal Book (Volume 1), p 8.
Subsection (5) is quite specific in requiring that the explanation must be given prior to the imposition of a bond. That clearly could not have occurred in this case given the course of action the learned Federal Magistrate took.
Although it was not the subject of argument before us we think it important to note, in case it is a practice, that the terms of s. 70NFE(5) do not appear to be terms that can be delegated to a legal practitioner acting for one of the parties and should be carried out by the Court. This appears from the following:
(5)If a court proposes to require a person to enter into a bond, it must, before making the requirement, explain to the person… (our emphasis)
ground 6
The learned Federal Magistrate erred in exercising her discretion by varying the parenting orders and in particular as follows:
a)The learned Federal Magistrate failed to identify and apply the
relevant provisions of part VII of the Family Law Act (1975) (“the
Act”) in deciding to vary the parenting orders;
b) The learned Federal Magistrate failed to give any adequate reasons for varying the parenting orders;
c)The learned Federal Magistrate failed to identify and give any or
any proper considerations of s.70NEB (6) of the Act when deciding
not to adjourn the proceedings to allow either party to apply for a
further parenting order;
d) The learned Federal Magistrate placed no weight or
inappropriate weight on the evidence in relation to the age of the
child and any likely affects upon her of the orders being made;
e) The learned Federal Magistrate placed no weight or inappropriate weight on the evidence of the distance between the parties when making the order;
f) The learned Federal Magistrate placed no weight or inappropriate weight
on the evidence of the bond between the child and her sibling when making the
order;
g)The learned Federal Magistrate had no regard or insufficient regard to
the effects on the child of having only two (2) weeks holiday with her mother
and sibling.
In the summary of argument of the Mother’s Counsel the submission is made that in varying the child related orders her Honour did not identify the relevant provisions of the Act which governed her reasoning process in making the orders that she did.[51]
[51] Summary of argument for Appellant filed 16 January 2009 at ¶51.
In his written submissions Mr Middleton notes:[52]
[52] Summary of argument for Appellant filed 16 January 2009 at ¶50 – 55.
50.The relevant paragraphs of the reasons relating to the variation of the parenting order are paragraphs 43 and 44.
51.Her Honour at not (sic) stage identified the relevant provisions of the Act.
52. Instead her Honour said this [at paragraph 44]:
“The proposal was put to the mother, and she accepted, that it was time for orders to be made to take care of the future. She appears to raise no objections to the substantive parts of the father’s varied proposal.”
53.Her Honour went on to state that one part of the father’s proposal was not put to the mother and then concluded with the following [at paragraph 55]:
“…But there’s nothing about that proposal that appears unreasonable to make, and I propose to make it.”
54.It is well established that a court, when deciding to vary parenting orders, must apply the provisions of the Act and make a decision that it is in the best interests of the child.[53]
55.The exercise of considering the s. 60CC factors receives no attention in the reasons.
[53] See Sandler & Kerrington [2007] FamCA 479; Irvin & Carr [2007] FamCA 429; and Dobbs and Brayson supra [Footnote taken from Summary of argument for Appellant filed 16 January 2009].
Prior to considering the reasons provided by her Honour for varying the orders it is necessary to consider the precise variations made to the orders.
Under the original consent orders of 2007, for the period from 23 February 2008 onwards, the Father was to have overnight contact from 9.00 am on the first day to 3.00 pm on the following day.[54] The order was not expressed to operate every 3 weeks but it appears to be common ground between the parties that it was to be so interpreted.
[54] Order of FM Spelleken dated 16 March 2007 (appended to the application for contravention filed by the Respondent on 20 September 2007), O 2(d); Appeal Book (Volume 1), p 82.
At paragraph 2(d) the order was expressed to operate:
2(d) From the 23 February, 2008 until further Order or as agreed in writing…
Under the orders as varied on 24 April 2008, it was provided that from
23 May 2008 the child would spend time with the Father every three weeks for three days commencing 12 noon on Thursday until 12 noon on Sunday and in addition one week in each of the Easter, June, July and September holiday periods and three weeks at Christmas.
From 23 May 2009 until the child commenced prep, the time spent was to be increased to include all school holiday periods save for the Christmas holidays when the Father was to have four weeks with Christmas day to be alternated.
From the time the child commenced prep the time spent with the Father was to be every second weekend 5.00 pm Friday until 3.00 pm Sunday together with holiday periods previously ordered.
In the Father’s affidavit filed 23 November 2007 he proposed a contact regime identical to the contact regime as ordered by her Honour, the one exception being that the Father proposed the changeover at the commencement and conclusion of contact occur at a different location to that previously ordered.[55]
[55] Affidavit of Mr Bedelia filed 23 November 2007 at ¶13; Appeal book (Volume 1), p 127.
In her affidavit the Mother deposed:[56]
I propose that the applicant be permitted overnight contact every three weeks for a period of three days, with the applicant being at liberty to exercise contact primarily in the [Darling Downs] area.
[56] Affidavit of Ms Greer filed by leave 19 March 2008 at ¶55(d); Appeal Book (Volume 1), p 73.
No evidence in chief was adduced from the Mother on the issue of holiday time. There was no re-examination on the proposed variation issues canvassed in the course of cross examination. In the course of the written submissions as ordered by her Honour there were no submissions made on the proposed variations to the orders on behalf of the Mother.
Her Honour was quite entitled to take the view that in light of the stance adopted by the Mother the variation of the child related orders was akin to a consent order with the dispute between the parties being of only a minor nature.
Grounds 8 and 9
That the learned Federal Magistrate erred in the exercise of her discretion by not providing reasons or any adequate reasons for deciding not to seek the advice of a Family Consultant prior to making an order that the mother attend a Post Separation Parenting Program.
Alternatively the learned Federal Magistrate erred in the exercise of her discretion by not giving consideration to seeking the advice of a Family Consultant prior to making an order for the mother to attend a Post Separation Parenting Program.
During the course of the Appeal hearing we were informed the Mother had already attended a Post Separation Parenting Program. In the circumstances these grounds were not pressed further.
Ground 10
The learned Federal Magistrate erred in exercising her discretion by failing to identify and apply the relevant provisions of the Act when making an order for costs.
In his affidavit filed in support of the contravention applications the Father deposed:[57]
61.I consider that [the mother] has acted unreasonably on a consistent basis which has forced me to file this contravention…
[57] Affidavit of Mr Bedelia filed 20 September 2007 at ¶ 61; Appeal Book (Volume 1), p 96.
In the Mother’s affidavit filed by leave on 19 March 2008 there is no reference to the issue of costs. As previously noted no evidence in chief was adduced from the Mother and there was no re-examination on any issue. There is brief reference in her written submissions on the subject.[58]
With respect to the question of costs it is submitted that an order should not be made that the Respondent pay the Applicant’s costs if it is not found that the Applicant had a reasonable excuse. The Respondent is in receipt of a modest income … and also does part time work in a restaurant to help make ends meet. She has the support of two children, and the Applicant only pays a minimal amount of child support.
[58] Appeal Book (Volume 1), p 32.
In the Father’s submissions to her Honour it was argued:[59]
29.The Applicant in this case will take no satisfaction from the success of his Application, save that it will secure compliance with the order and perhaps an extension of the time that he has with his daughter. Nevertheless, it is necessary to make submissions on his behalf that will go to ensuring future compliance.
30.The Applicant accepts that the Respondent has the larger part of the care of [A]. He pays child support, and it was part of the evidence that there is a review of the assessment under way. The Applicant does not suggest that the Respondent has much in the way of funds to pay as a penalty and of course does not suggest that there be any kind of custodial sentence.
…
32.Additionally, there should be an order for costs, including reserved costs. The Application was necessarily brought. If it is entirely successful it will be so on the basis that your Honour has found no reasonable excuse for the breaches of the order. Further, it must be remembered that the order was made by consent. In other words, the order was not imposed upon the Respondent unwillingly, but was by and with her agreement. It will be appropriate, it is respectfully submitted, that an order be made for costs, with a certification for counsel and for an instructing solicitor and for the order to include the costs reserved on the 29th October 2007.
[59] Submissions for Respondent dated 9 April 2008 at ¶29, 30 and 32; Appeal Book (Volume 1), p 42 – 43.
In the course of her reasons her Honour noted:[60]
45.I propose to make an order for costs, including reserved costs. In relation to reserved costs, the matter was listed for hearing initially on 29 October 2007. It was listed for hearing on that day. The mother did not make an application for an adjournment until that morning and she did so by telephone. She complained, if I recall correctly, about having suffered an injury over the weekend and she was seeking some legal advice and if I recall correctly she raised something about what she had been told by the Child Support Agency. It seemed to be irrelevant to the proceedings then before the Court. She made no contact with the father’s solicitors to inform them that she needed more time to get advice and that she intended to make an application for an adjournment. She offered no medical evidence to support the bona fides of her position as to her hip injury, I think it was, so that the father could have considered his position, including briefing counsel on that day and to avoid him having to come to Brisbane for the hearing.
46.The evidence before me showed this to be a repetitive pattern of delay, complaints of a range of health problems, none supported by evidence, save on that one instance in relation to the child, [A], and save in relation to the medical certificate that I have received yesterday from the mother, complaints of driving too far, or costs of driving, et cetera, in circumstances where the mother refused at any stage to exercise the dictates of common sense and courtesy by simply getting on the phone at the earliest and providing the father with some notice about what was happening and the opportunity to agree on some varied arrangements.
47.I was less than impressed with the mother’s attitude on the day that I granted her that first adjournment.
48.In reaching my decision on costs, I have been guided by the principles in s.117 of the Act. Whilst I take into account the fact that the mother has modest means, the father is not a person of means either. He works full time but he has four children to support. He pays child support for [A] and he has borne the major, and probably not insignificant, costs of travelling to spend time with [A]. I also take into account that no evidence has been placed before me of any attempts to resolve this matter in the five or so months between the filing of the father’s application and the Legal Aid conference; the number of times this matter has come to Court; the fact the mother was legally represented by counsel when consent orders were made and the undertakings given by her.
[60] Reasons of FM Purdon-Sully dated 24 April 2008, ¶45 – 48; Appeal Book (Volume 1), p 27 – 28.
In light of the paucity of submissions on this issue her Honour’s reasons were quite fulsome. We see no merit in interfering with the exercise of her Honour’s discretion in making the award of costs that she did.
conclusion
For the reasons given the Appeal will be dismissed.
In dismissing the Appeal we are conscious of what we perceive to be an error by her Honour in failing to personally explain the purpose and effect of the bond but in view of the Respondent’s position not to seek the imposition of a bond it is an error without consequence.
costs of the appeal
We direct that the Respondent file and serve written submissions on the issue of costs of the Appeal within seven (7) days. The Appellant to file and serve written submissions on the issue of costs seven (7) days after receipt of the Respondent’s submissions on costs.
I certify that the preceding eighty-eight (88) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 4 August 2009
5
3
1