Hakimi & Nasser (No. 2)
[2021] FamCAFC 88
•8 June 2021
FAMILY COURT OF AUSTRALIA
Hakimi & Nasser (No. 2) [2021] FamCAFC 88
Appeal from: Nasser & Hakimi [2021] FamCA 5 Appeal number(s): EAA 11 of 2021 File number(s): SYC 5345 of 2018 Judgment of: STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ Date of judgment: 8 June 2021 Catchwords: FAMILY LAW – APPEAL – PARENTING – Appeal against final parenting orders providing for the children to live with the mother and spend graduating time with the father, commencing with supervision – Orders restrain the mother from relocating with the children outside of Australia – Failure to take into account family violence pursuant to s 60CC(3)(j) of the Family Law Act 1975 (Cth) – Failure to consider the mother’s proposal of no contact with the father and the benefits of relocation – Practicality of orders – Where the mother argued the injunction preventing her relocation with the children was plainly wrong – No error demonstrated – Appeal dismissed – Costs ordered in a fixed sum with payment stayed until finalisation of property settlement proceedings. Legislation: Family Law Act 1975 (Cth) Pts VII, VIII, ss 60CA, 60CC, 65AA
Family Law Rules 2004 (Cth) r 19.18(1)(a)
Cases cited: AMS v AIF (1999) 199 CLR 160; [1999] HCA 26
House v The King (1936) 55 CLR 499; [1936] HCA 40
M v M (1988) 166 CLR 69; [1988] HCA 68
Taylor and Barker (2007) FLC 93-345; [2007] FamCA 1246
U v U (2002) 211 CLR 238; [2002] HCA 36
Division: Appeal Division Number of paragraphs: 70 Date of hearing: 25 May 2021 Place: Sydney Solicitor for the Appellant: Ryan & Seton Lawyers Counsel for the Appellant: Mr Levick Solicitor for the First Respondent: Dimocks Family Lawyers Counsel for the First Respondent: Mr Coleman SC The Second Respondent: Litigant in person (did not participate) Solicitor for the Independent Children’s Lawyer: Legal Aid NSW Counsel for the Independent Children’s Lawyer: Mr Harris ORDERS
EAA 11 of 2021
SYC 5345 of 2018APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MS HAKIMI
Appellant
AND: MR NASSER
First Respondent
MS NASSER
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ
DATE OF ORDER:
8 JUNE 2021
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of and incidental to the appeal, fixed in the sum of $15,000, payment of which is stayed until finalisation of the proceedings between the parties under Part VIII of the Family Law Act 1975 (Cth).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hakimi & Nassir (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
STRICKLAND, AINSLIE-WALLACE & AUSTIN JJ:
By way of an Amended Notice of Appeal, filed on 20 April 2021, the appellant mother appeals from parenting orders made in respect of the spouses’ three children on 19 January 2021 pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”).
The appeal was opposed by the first respondent father.
The Independent Children’s Lawyer (“the ICL”) supported the mother’s case at trial, but opposed the appeal on the basis that appealable error could not be demonstrated.
The paternal grandmother was joined to the proceedings below as the second respondent, but she filed a Submitting Notice and did not participate in the appeal.
At trial, it was accepted the children (then aged between eleven and four years) would continue to live with the mother. The principal issue in dispute was whether the children’s residence with the mother would be confined to Australia, as the father wanted, or whether the mother would instead be free to move to live in European Country B with the children, as she wanted. The ancillary contentious issues were the nature of the children’s future interaction with the father and the paternal grandmother, the extent to which such interaction should be regulated by order or instead left to the mother’s discretion, and whether or not the spouses should equally share parental responsibility for the children.
The orders made by the primary judge restrain the mother from relocating the children’s residence to any place outside Australia, prescribe the children’s future interaction with the father (and incidentally the paternal grandmother), and confer upon the mother sole parental responsibility for the children in relation to decisions about their “long term welfare”.
For the reasons which follow, the appeal should be dismissed with costs.
BACKGROUND
The mother is a citizen of Country B and the father is an Australian citizen.
The spouses met in Australia in 2008 while the mother was working and travelling in Australia. She returned to Country B in late 2008 when her visa expired, by which time she was pregnant with the eldest child.
Several months later, the father travelled to Country B, where the spouses were married in May 2009. In late 2009, they returned with the eldest child to live in Australia. They have lived here ever since, though the mother was not always content about that situation. The spouses separated and reconciled several times during their marriage, but finally separated in September 2017.
The father commenced proceedings under Pt VII of the Act in August 2018, seeking orders enabling the children to spend time with him. The mother joined issue in October 2018, seeking orders that would enable her to relocate with the children to live in Country B and to unilaterally decide if, when and how the children should ever spend any time with the father.
Interim orders were first made in October 2018 by a judge of the Federal Circuit Court of Australia, which provided for the children to live with the mother and directed that they spend no time at all with the father.
After the proceedings were transferred to the Family Court of Australia, more interim orders were made in March 2019, requiring the children to spend supervised time with the father and the paternal grandmother at a contact centre for two hours each alternate weekend and also requiring the two older children and the father to engage in an educational program.
Another set of interim orders were made in August 2019, this time with the spouses’ consent, requiring the children to spend time with the father under professional supervision and for the children and father to participate in therapeutic counselling together.
Contrary to the interim orders, the children neither spent time nor communicated with the father or paternal grandmother for three years preceding the trial (at [8]), the responsibility for which failure fell to the mother (at [27]–[28], [134] and [218]–[221]).
The trial before the primary judge was conducted over four days in October and November 2020, with the final orders pronounced and reasons for judgment delivered on 19 January 2021.
On the mother’s application, Aldridge J expedited the hearing of the appeal. In addition, his Honour ordered that the father’s interlocutory application to summarily dismiss the appeal be heard with the appeal. The father indicated to us that he abandoned the summary dismissal application, but maintained his opposition to the appeal.
THE APPEAL
Ground 1 – failure to take a material consideration into account
This ground asserted that, notwithstanding the primary judge did allude in the reasons for judgment to the evidence of family violence pursuant to s 60CC(3)(j) of the Act, her Honour did not do so specifically in the context of the mother’s proposal to live with the children in Country B, which was said to amount to an error of law.
In support of this ground of appeal, the mother submitted:
3.The [mother] contends that the Trial Judge has failed to properly and adequately consider the effects of family violence in coming to her conclusion.
…
23.It is submitted the Trial Judge did not specifically consider the issue of family violence in the context of the relocation.
…
25.Whilst the Trial Judge considered the effect of family violence in the context of the primary consideration, and whilst she recites the evidence of family violence, it is submitted that the analysis of family violence does not find its way into the reasoning making process of the refusal to make the order permitting the [mother] to live with the children in [Country B].
The submissions were inapposite because they assume the mother’s proposal to move and live with the children in Country B was an isolated issue capable of being evaluated discretely under s 60CC of the Act, whereas it was simply an integral component of her parenting application and the broader parenting dispute. It is well established that the proposed relocation of children to a geographically distant place should be considered as just one of the proposals for the children’s future living arrangements, rather than as a discrete issue (Taylor and Barker (2007) FLC 93-345 at 81,912).
The mother’s desire to relocate overseas with the children was but one factor which would influence the primary judge’s determination about proper parenting orders for the children. While the mother did not lose her right to enjoy a high measure of freedom of movement merely because of her parental responsibility for the children (AMS v AIF (1999) 199 CLR 160 at 196, 206–208 and 210), her desire to relocate potentially conflicted with the children’s interest to know and have regular contact with the father. The mother’s position at trial was that she would not leave Australia without the children (at [197]), so her right to the freedom of mobility had to yield if their interests, being the paramount consideration, would be harmed by the international relocation (U v U (2002) 211 CLR 238 at 262). It is well recognised that, other than in instances of abusive relationships, children benefit from the development of good relationships with both parents (U v U at 285–286; M v M (1988) 166 CLR 69 at 76 and 78).
Section 60CC of the Act prescribes the mandatory considerations which must be factored into the overall decision as to how the children’s best interests will be served. More specifically for present purposes, s 60CC(3)(j) of the Act required the primary judge to consider the occurrence of any family violence involving the children or any family member as a pertinent factor in formulating the orders which would promote the children’s best interests.
From the mother’s perspective, the father’s commission of family violence was an important feature of the case. There was abundant evidence before the primary judge to establish family violence had occurred between the spouses and, further, that the children had been exposed to such conduct. The primary judge made positive findings to that effect, including these:
31.The mother herself had been physically assaulted and rudely treated at times by the father. The children had been exposed to verbal and physical encounters between the parents. They saw the father slap the mother’s face.
…
80.The mother firmly denied all propositions that she had slapped the father, struck the father’s groin with her knee, thrown an apple at him or “yelled and screamed at him to get him to understand how much you needed to go home.”
81.I do not unreservedly accept the mother’s denials. In January 2019 when the children were interviewed the two older children both recalled “that the mother and father would “argue all the time”. Both thought the father started it but [the middle child] described the parties arguing “back and forth”.
…
108.The children have been exposed to family violence.
109.With the end of the parties’ marriage that exposure stopped.
…
162.This is a matter where family violence has taken place. The father conceded that he has been the perpetrator of violence.
163.There have been family violence orders and convictions for the father.
…
168.By 2010 the parties were having heated arguments. The mother probably did throw an apple at the father’s head when he was driving. Weeks later the mother struck the father in the groin with her knee.
…
192.The children have been exposed to violent arguments with all the uncertainty of not knowing when the next one would erupt and worse whether it would end in violence.
193.Although the father has done more harm neither party has held back verbally.
In view of the primary judge’s extensive references to the evidence of family violence and the nature of the findings made on the issue, there was no scope at all for the mother to contend such evidence was an overlooked material consideration.
Just as the mother seemingly did during the spouses’ marriage, the primary judge largely attributed the father’s past violent and threatening behaviour to his impaired state of mental health, observing:
74.[The mother] stood by him in the hope that his mental health would improve, until she no longer could…
…
167.The father has had episodic mental illness at least since 2006 when he was diagnosed with depression and anxiety. He has used cannabis.
…
196.I conclude that the mother loved the father, enjoyed his good side and despaired of his aggressive unbalanced side. She hoped for change just as the older two children have since separation. She knew his mental health needed to be stabilised.
By the time of trial, two important facts were established. First, there had been no family violence between the spouses since their separation (some three years before) and so the risk of its repetition continued to recede with the passage of time. Secondly, there was expert medical evidence to prove the father’s psychological condition had markedly improved since the spouses’ separation. Her Honour found:
33.The father has suffered from mental illness, slowly brought under control by psychiatric therapy and effective medication. That positive change came too late to restore the parties’ relationship. Trust had evaporated.
…
63.Relevant to these proceedings [the father’s psychiatrist] stated that the father recognised he had been violent…
64.[The father’s psychiatrist] described the father as having been aggressive, had used cannabis, had made risky decisions and had poor impulse control. Her opinion was that the father was unlikely to relapse if recommended treatment was followed.
The mother’s case at trial was the family violence perpetrated upon her by the father justified her opposition to any further involvement by him in the children’s lives and, consequently, there should be no impediment to her proposal to return to live in Country B with them. In final submissions, her counsel submitted to the primary judge:
… Now, the family violence issue informs the two – in part, the two broad aspects of these proceedings. The first is the relocation and the second is the question of risk…
(Transcript 17 November 2020, p.122 lines 21–23)
While the primary judge accepted the proven family violence affected the determination of the children’s best interests and thereby influenced the decision about the orders best suited to the promotion of their interests, her Honour did not accept the findings should affect the overall outcome in the way the mother advocated.
Significantly, the primary judge did unequivocally accept that the mother was justified in wanting nothing more to do with the father personally, but found her personal interests diverged from those of the children, observing:
58.Quite reasonably the mother herself now wants nothing more to do with the father. The children have held on to a different perspective.
…
73.The mother has rejected the father and any possibility of restoration of a relationship with him…
…
75.The difficulty for the mother is that the Court does not agree with her view that the needs and interests of the children in respect of the father are identical to her own…
…
83.The most likely explanation is that in retrospect the mother sees nothing good about the father or his family and herself as helpless and desperate.
Given the receding risk of the children’s exposure to further family violence between the spouses (s 60CC(2)(b)), the benefit the children were liable to accrue from their continuing relationships with the father assumed importance (s 60CC(2)(a)).
Her Honour found the children enjoyed good relationships with the father before the spouses’ separation (at [37] and [106]), that the relationships were capable of being restored (at [40]), and it would be in the children’s best interests to do so (at [110]–[111]). Professional supervision of the children in the father’s company for several months should alleviate any apprehension felt by both them and the mother (at [114]). On the other hand, the children’s relocation to Country B with the mother would permanently end their relationships with the father (at [29], [142]–[143] and [211]) and, to their detriment, they would grow up believing he was a danger to them and the mother (at [212]).
As can be seen, the primary judge did factor the evidence of family violence into the overall decision, just as s 60CC of the Act required, but the findings made in respect of it did not vindicate the mother’s case in the way she had hoped. However, that does not manifest appealable error, in which case this ground should fail.
The primary judge did not shut the door tight on the prospect of the mother’s future relocation with the children to Country B. Her Honour said:
198.If relationships between the children and the father are restored/developed in accordance with these orders the children will become much more comfortable and confident in the love and affection of the father and extended paternal family. That may take two or three years.
199.Thereafter, if she still wishes to return to her native country and considers that it would be in the best interest of the children to relocate the mother might make a further application to this Court…
Ground 2 – failure to engage with the mother’s case
This ground alleged the primary judge “failed to engage” with the mother’s proposal that the children should spend no time at all with the father.
Given the orders made by the primary judge were the product of an exercise of discretion, the grounds of appeal which are available from the appealed orders are those identified by the High Court of Australia in House v The King (1936) 55 CLR 499 at 504–505, which do not include an alleged failure to engage with an appellant’s case theory.
For present purposes, it may be accepted the mother intended to convey that the primary judge failed to take into account some material consideration upon which she relied, or that the primary judge’s reasons are inadequate to explain the resolution of a pivotal issue in the case. Regardless of the manner in which the complaint within this ground of appeal may be styled, it is without substance because the primary judge was acutely aware of the mother’s proposal to eliminate the father from the children’s lives, but rejected her proposal.
Her Honour found the mother had thwarted the children’s interaction with the father for three years prior to trial, despite interim orders to the contrary (at [27]–[28], [134] and [218]–[221]), and found the children’s international relocation with the mother would spell the end of their relationships with the father (at [29], [142]–[143] and [211]), which outcome would deleteriously affect the children’s best interests. Rather, their best interests were served by orders designed to rejuvenate their relationships with the father, initially under supervised conditions so as to reasonably ameliorate any apprehension felt by them or the mother.
In reaching that conclusion, the primary judge said:
110.There is a balance to be struck between past harm experienced against the benefit in reconnecting with the father (and in [the youngest child’s] case being introduced to the father) and being able to come to their own conclusions about him based on real life experiences.
111.I conclude that the children should have that opportunity to restore and develop the relationship.
112.The mother is now implacably imposed [sic] to this happening and committed to the belief that the children are so fearful of the father that they should not be brought in contact with him in any circumstance.
…
128.[The youngest child] has spent so much time away from the father he probably has no memory of him. The family consultant reported the long term implications for the child of never having had the opportunity to build a relationship with the father may be difficulty [sic] with self-esteem and behavioural problems, particularly as he enters adolescence.
There could be no misunderstanding about the nature of the mother’s case.
She deposed in her trial affidavit:
87.In or around August 2018, I was served with [the father’s] Initiating Application which commenced these proceedings. I was horrified that [the father] was trying to get near me and the Children.
…
163.I do not believe that the Children would benefit from having a relationship with [the father] because he has caused them so much emotional and psychological harm…
She then contended in her Case Outline document:
5.… The mother makes no proposal for orders regulating the time that the children spend with the father.
…
20.It is acknowledged that the mother’s application, if successful, would result in an arrangement whereby the children spend little to no face to face time with members of the paternal family…
In cross-examination, the mother made this admission:
[COUNSEL FOR THE FATHER]: All right. Well, is it because you think maybe they should see their father and their grandmother?
[THE MOTHER]: No. I want the children to be safe. And they are traumatised. So I just want what’s in the best interests of the children.
[COUNSEL FOR THE FATHER]: Right. So there’s no uncertainty about it, you just chose those words to say you want there to be no time between the children and their father and his side of the family; is that right?
[THE MOTHER]: If – sorry, yes. Yes.
(Transcript 20 October 2020, p.10 lines 4–14)
Lastly, during final submissions, her Honour and the mother’s counsel had this discussion:
HER HONOUR: And your client just wants to go and never come back. And that’s how it would work for the children too, until they were adults.
[COUNSEL FOR THE MOTHER]: That’s – yes, it would, your Honour, and I acknowledge that…
(Transcript 17 November 2020, p.129 lines 21–24)
The mother’s submission that the primary judge failed to appreciate the fundamental plank of her case should be rejected and this ground should fail.
Grounds 3 and 5 – erroneous findings
These grounds alleged the primary judge “erred in law” (not fact) by making the findings within paragraphs [24], [145] and [206] of the reasons for judgment.
Those paragraphs record:
24.The evidence of the mother was directed to how things had gone wrong in the parties’ marriage and why she wanted to leave Australia. A clear picture did not emerge of how the future would look for the children, where they would go to school, where they would live and who would be part of their lives.
…
145.The children are likely to benefit from the mother’s pleasure at being “home”. However it is twelve years since the mother lived in her native country. Where she will live and work, how she will reconnect with past associations, is unknown.
…
206.The mother is an educated, intelligent, resourceful person. By 2022 when [the youngest child] starts school she will have lived in Australia for 14 years and is likely to be able to find employment.
The mother adduced evidence-in-chief that, if able to relocate to Country B with the children, they would live with the maternal grandparents until she could find separate accommodation near L City, where they would be in close proximity to numerous members of the extended maternal family. She expected to secure work as an educator and proposed the children would be enrolled at local schools. None of that evidence was challenged.
The mother’s submission in the appeal was that the findings of the primary judge in [24], [145] and [206] of the reasons for judgment were simply “not open” in the face of such unchallenged evidence, but the submission contradicts an admission made by the mother’s counsel to the primary judge during final submissions in these terms:
HER HONOUR: Yes. [Mother’s counsel], I haven’t got any evidence from anyone in [Country B] about what they are going to do. What job they’re going to offer, what family support they are going to offer. There’s nothing.
[COUNSEL FOR THE MOTHER]: No. Your Honour doesn’t have that, but all that your Honour has is, I think it’s in paragraph 16 of my client’s affidavit, which is she identified who her important people are in [Country B].
HER HONOUR: Yes.
[COUNSEL FOR THE MOTHER]: She says, at paragraph 18, she doesn’t consider herself to have a support network in Australia. So it’s more than just the financial situation by itself, it’s more than just, what the mother asserts is a lack of support, by itself. And it’s more than just the violence with the father by itself. It’s the conflation of all of those things.
(Transcript 17 November 2020, p.132 lines 29–43)
In fact, the findings which the mother seeks to impugn were plainly open and were not precluded by the evidence to which the mother pointed. While it was clear she and the children would live amongst maternal relatives, the children’s future in Country B was otherwise quite vague. The mother’s vocational plans in Country B were no more than an asserted expectation. Her education, intelligence and resourcefulness did indeed equip her to find gainful employment in Australia. The mother’s skills augured well for the prospects of her employment in Australia, which finding was no less speculative than her own conjectural evidence about obtaining suitable employment in Country B. As the primary judge correctly recorded (at [205]), the mother acknowledged in her evidence-in-chief that, if still living in Australia, then upon the youngest child’s commencement of school in 2022 she will “have to return to the workforce in Australia”.
In any event, the challenged findings about the lack of detail surrounding the proposed lives of the mother and children in Country B were not material to the outcome. It was common ground the children would be well cared for by the mother, though she contended she could do that more easily in Country B than in Australia. Accepting the premise that the mother could adequately provide for the children’s physical and intellectual needs wherever they lived, the reasons which militated against her proposed relocation with the children were the likely severance of their relationships with the father (at [211]) and the emotional detriment the children would experience by them growing up believing the father was a danger to them and the mother (at [212]).
This ground should fail.
Ground 4 – failure to take a material consideration into account
This ground alleged the primary judge failed to take into account, as a material consideration, the evidence adduced by the mother about the benefits of the children living with her in Country B. This ground is really an extension of the complaint comprising Grounds 3 and 5 and can be similarly rejected.
The mother’s case was not really that the children would be better off living in Country B. Rather, her case was she would be better off living in Country B and the children would not be disadvantaged by moving with her. Of course, her desire to live in Country B was a material consideration, duly taken into account by the primary judge. But when the primary judge found the children’s best interests were better served by them staying in Australia and the mother was intent on remaining their residential carer, then the children’s best interests, being the paramount consideration (s 60CA and s 65AA), had to take precedence over the mother’s freedom to choose her place of residence.
As was observed in addressing Grounds 3 and 5, the emotional detriment liable to be suffered by the children through the permanent loss of their filial relationships with the father if they moved to live in Country B was the critical determinant. This ground fails.
Ground 6 – error of law
This ground alleged the primary judge “failed to consider the practicality” of two sub-orders (Orders 9.3.2.1 and 9.4.1) which regulate the time the children must spend with the father during school terms after November 2021.
Order 9.3.2.1 expands the children’s visits with the father in school terms to alternate weekends, commencing after school on Friday and ending on Monday morning before school resumes.
Order 9.4.1 expands the visits again from the beginning of the 2023 school year, so that the alternate weekend visits in school terms commence from the conclusion of school on Thursday and end on the following Monday morning before school resumes.
The evidence before the primary judge established the children live with the mother in the J region of NSW and the father lives in a western suburb of Sydney, with their homes separated by a drive of about 90 minutes’ duration (at [146]). Aside from the mother’s wish to relocate to Country B, there was no evidence that either party intended to move.
As was required by s 60CC(3)(e) of the Act, in view of the distance between the spouses’ homes, the primary judge expressly did consider the practical difficulty of the children spending time with the father once the requirement for supervision ended (at [146]–[149]). In that context, the primary judge made this finding about the practicality of the orders requiring the children to be transported between the J region and the western suburbs of Sydney:
147.At 11, eight and almost five the children could manage that trip if it was fortnightly.
It must therefore follow that this ground of appeal, which asserts the failure to consider the practicality of the impugned orders, must fail.
However, a question arose during the appeal hearing as to whether the finding made about the practicality of Order 9.4.1 (but not Order 9.3.2.1) was reasonably open on the evidence, since the mother submitted in her Summary of Argument:
71.The Trial Judge does not address the practical difficulties of transporting children to and from school in circumstances where the parties live 90 minutes apart.
While it was open to find the children could manage one fortnightly return trip between the regions of the spouses’ homes as from May 2021 under Orders 9.2.2 and 9.3.2.1, much more is required of them from the beginning of 2023 by Order 9.4.1. By then, in each alternate week during school terms, the children must be: transported to Sydney after school on Thursday; transported back to the J Region the next morning to attend school on Friday; transported back to Sydney again after school that day; and then transported back to the J Region on Monday morning before school.
The orders do not prescriptively regulate how the children are to be exchanged between the parties once the requirement for professional supervision under Order 9.1 ends by May 2021, leaving the spouses to presume the father will collect and return the children to and from school, unless they agree to use a contact centre or paternal relative as an intermediary, as the primary judge envisaged was a possibility (at [149]). Even if it is assumed the father is willing to bear the entire travel burden, there was only a relatively fragile basis upon which the primary judge could reasonably find that young children like these would benefit from the onerous fortnightly regime from the beginning of 2023.
Order 9.4.1 was made in the image of an order proposed by the father in his application. While it is true he gave no evidence and made no submissions about how an order in those terms could be practically implemented, importantly, no challenge was ever mounted during the trial by either the mother or the ICL to the practicality of an order to that effect.
Not unreasonably, the father contended he could only be expected to meet the grounds of appeal as pleaded and he would be unfairly taken by surprise having to suddenly meet an entirely different complaint about the validity of Order 9.4.1. He came to defend the incorrect assertion that the primary judge failed to consider the practicality of the order; not to defend an entirely different proposition that the finding of its practicality was not open. In the end, that submission should be accepted and this ground fails.
Ground 7 – injunction is plainly wrong
This ground alleged the order restraining the mother from establishing the children’s residence anywhere outside Australia (Order 3) was “plainly wrong”, but during argument the ground was abandoned and no more need be said about it.
DISPOSITION
The appeal should be dismissed.
In that event, the father sought costs, which he conceded could be properly fixed at approximately $15,000 pursuant to r 19.18(1)(a) of the Family Law Rules 2004 (Cth).
The mother formally opposed such an order, but conceded she was exposed if the appeal was dismissed for lack of merit. The only argument she could garner in defence of an order was her modest financial circumstances, as she receives Centrelink benefits. However, the parties are still contesting property settlement relief and the father conceded the mother’s liability for costs could be postponed until the finalisation of the proceedings under Pt VIII of the Act.
We are persuaded to make a costs order in the fixed sum of $15,000, payment of which is stayed until the finalisation of the property settlement proceedings.
I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Strickland, Ainslie-Wallace & Austin. Associate:
Dated: 8 June 2021
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