Harris and Smith and Anor
[2008] FamCAFC 36
•3 April 2008
FAMILY COURT OF AUSTRALIA
| HARRIS & SMITH & ANOR | [2008] FamCAFC 36 |
| FAMILY LAW - APPEAL AGAINST INTERIM ORDERS – WITH WHOM A CHILD LIVES AND SPENDS TIME – Where Federal Magistrate made orders that the child live week about with each of his grandmothers on an interim basis – Whether Federal Magistrate erred in placing insufficient weight on the parenting arrangements in place prior to the commencement of the proceedings; in failing to consider the effect on the child of separation from his father; in failing to give sufficient weight to the nature of the relationship between the child, the mother, the father and each of the grandparents; and in failing to give adequate reasons for his decisions – Whether Federal Magistrate placed too much weight on evidence of risk to child – Whether Federal Magistrate failed to follow the legislative pathway in Part VII of the Family Law Act 1975 as required by the Full Court decision in Goode and Goode – Merit found in the grounds of appeal – Appeal stood over for further consideration pending receipt by the court of further submissions from all parties on various matters relevant to a re-exercise of the discretion. |
| Family Law Act 1975 (Cth) |
| Bennett v Bennett (1991) FLC 92-191 Goode and Goode (2006) FLC 93-286 Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-033 |
| APPELLANT: | Mr Harris |
| 1ST RESPONDENT: | Ms Smith |
| 2ND RESPONDENT: | Ms A |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Lee |
| FILE NUMBER: | CAC | 1503 | of | 2007 |
| APPEAL NUMBER: | EA | 131 | of | 2007 |
| DATE DELIVERED: | 3 April 2008 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Finn J |
| HEARING DATE: | 27 March 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7 September 2007 23 October 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 992 [2007] FMCAfam 993 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Nash |
| SOLICITOR FOR THE APPELLANT: | Legal Aid ACT |
| COUNSEL FOR THE 1ST RESPONDENT: | Self Represented |
| SOLICITOR FOR THE 1ST RESPONDENT: | Self Represented |
| COUNSEL FOR THE 2ND RESPONDENT: | Ms Lyndon (Solicitor) |
| SOLICITOR FOR THE 2ND RESPONDENT: | McGuinness Eley |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Lee (Solicitor) |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Pappas j. |
Orders
That the appeal be stood over for further consideration pending receipt by the Court of the further submissions from all parties according to the program described in paragraphs 44 to 52 of the reasons for judgment of the Honourable Justice Finn delivered on 3 April 2008.
IT IS NOTED that publication of this judgment under the pseudonym Harris and Smith and Anor 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 CANBERRA |
Appeal Number: EA 131 of 2007
File Number: CAC 1503 of 2007
| Mr Harris |
Appellant
And
| Ms Smith and Ms A |
Respondents
REASONS FOR JUDGMENT
The appeals before the court on 27 march 2008
On 7 September 2007 Neville FM made the following parenting orders in relation to a boy (now aged 9) after a hearing at which both the applicant father and the respondent mother were legally represented:
3.Pending further order of the Court, [the child] live with the maternal grandmother and the paternal grandmother … on a week about basis.
…
5.That the applicant and the respondent shall spend time with [the child] on a week about basis as facilitated by the respective grandparents (or as otherwise agreed in writing between the parties). …
On 23 October 2007 after a further hearing at which both parents were legally represented as was the child (by an Independent Children’s Lawyer), his Honour decided to continue the orders made on 7 September 2007. (Whether on 23 October 2007 his Honour continued the orders of 7 September 2007 by means of an order as the cover page of his reasons for judgment of 23 October 2007 indicates, or by means of a notation as the sealed engrossment of his orders of 23 October 2007 indicates, is of no consequence for present purposes in view of the fact that the father seeks to appeal Orders 3 and 5 of 7 September 2007).
On 14 November 2007 (which was within the prescribed time for filing an appeal against the orders of 23 October 2007) the father filed a notice of appeal stated to be against Orders 3 and 5 of the orders of 7 September 2007 and against Orders 1 and the notation on the orders of 23 October 2007.
On 26 November 2007 the father filed an application for an extension of time to appeal the orders made on 7 September 2007.
At the hearing before me on 27 March 2008, I indicated that I was prepared to extend the time for the father to appeal the orders of 7 September 2007 until 14 November 2007 (being the date when the notice of appeal was filed). I was prepared to do so for the reason that had the Federal Magistrate set out in his orders of 23 October 2007 the full content of Orders 3 and 5 of his orders of 7 September 2007 (rather then simply making a cross reference to them as he did in his orders of 23 October 2007), there would have been no issue but that the father could have appealed those orders as of right (that is, without the need for an extension of time to appeal). It would clearly not be just to deny him the right to appeal the content of Orders 3 and 5 of 7 September 2007 because of the manner in which the Federal Magistrate had chosen to incorporate those orders into his orders of 23 October 2007.
I also mention in this context that I understood that the father had not originally appealed the orders made on 7 September 2007 because he was prepared “to live with” those orders until the interim hearing scheduled for 23 October 2007.
Thus before me for hearing on 27 March 2008 were the father’s appeals against the orders set out at the commencement of these reasons, being Orders 3 and 5 of the orders of 7 September 2007 and Order 1 of the orders of 23 October 2007 (or alternatively the notation contained on those orders – assuming but not deciding that a notation can be appealed).
At the hearing on 27 March 2008:
· the appellant father was represented by counsel, Mr Nash;
· the mother as first respondent appeared without legal representation; she informed me that her position that was the Federal Magistrate’s orders should remain in place; that is, she opposed the appeals;
· the maternal grandmother (who had been joined as a party to the proceedings by the Federal Magistrate by his orders of 7 September 2007) as the second respondent was represented by a solicitor, Ms Lyndon; the maternal grandmother also opposed the appeals and sought to maintain the Federal Magistrate’s orders; and
· a solicitor, Mr Lee, appeared as the Independent Children’s Lawyer; he supported the appeals.
The paternal grandmother, who is, of course, affected by the orders which are the subject of the appeals, was also in court. I was informed by the father’s counsel that the paternal grandmother did not wish to be heard on the appeals although she supported them; but that in the event that the mother or the maternal grandmother would seek to rely on further evidence in the event of a re-exercise of the discretion by me, the paternal grandmother may wish to be heard.
The grounds of appeal
The only grounds of appeal contained in the notice of appeal which were pursued on behalf of the father at the hearing on 27 March 2008 were that the Federal Magistrate had erred in:
· placing insufficient weight on the parenting arrangements in place prior to the commencement of the proceedings;
· failing to consider the effect on the child of separation from his father;
· failing to give sufficient weight to the nature of the relationship between the child, the mother, the father and each of the grandparents;
· failing to give adequate reasons for his decisions.
Before referring to the submissions made both in support of, and in opposition to, the grounds of appeal, it is necessary to make some reference to the background to the proceedings before the Federal Magistrate and also to his Honour’s reasons for judgment in relation to the orders of 7 September 2007 and 23 October 2007.
The history of the matter up until 7 september 2007
The child, who is the subject of these proceedings, was born in March 1999 at a time when the father and the mother had already been living together for several years. The father and the mother separated on a final basis in mid 2002, when the child would have been about three years old.
Following his parents’ separation, the child remained in the father’s care in Canberra. The mother moved to Sydney in late 2004.
In the six year period since his parents’ separation, and while living with his father, the child has spend a considerable amount of time with the maternal grandmother, who lives in Canberra. He has also spent time with the mother (often it would seem facilitated by the maternal grandmother) but the extent of that time appears to be a matter of dispute.
During the school holidays in July 2007 the child went to stay with the mother in Sydney. The mother did not return him to Canberra at the conclusion of those holidays. She claims that during the holidays the child had said to her:
I am scared to go home. I don’t want to go back to Dad’s. Dad chased [another child] around and was hitting him. I was scared and didn’t know what to do. I just went and sat out on my trampoline.
It was apparently for this reason that the mother did not return the child at the conclusion of the July 2007 school holidays.
On 2 August 2007 the father filed an application in the Federal Magistrates Court seeking an order for the return of the child and also orders on both an interim and final basis that the child live with him and have time with the mother supervised by the maternal grandmother.
On 15 August 2008 Neville FM made an order for substituted service of the father’s application on the mother by service on the maternal grandmother, and adjourned the matter to 22 August 2007.
On 22 August 2007 further orders were made by his Honour including orders that the child live with the mother until 6 September when the matter was again to come before the court. It appears from the engrossed orders of 22 August 2007 that on that day the mother appeared before his Honour by telephone, with a solicitor appearing in court for the father.
I have not been provided with any transcript of the proceedings on 22 August 2007, nor reasons for judgment in relation to the orders made that day.
The federal magistrate’s orders and reasons for judgment of 7 september 2007
The matter next came before the court on 7 September 2007 when both parents were represented by solicitors. In addition to Orders 3 and 5 set out at the commencement of these reasons, and also to the order joining the maternal grandmother as a party, his Honour ordered that the child should be returned to Canberra no later than 14 September 2007, and that a short Family Report be prepared. He also listed the matter for a final hearing on 12 and 13 June 2008.
In relation to his orders made on 7 September 2007 his Honour gave the following brief reasons:
1.Given the statutory protective responsibilities of the Court in relation to the care of children, in this instance [the child], prescribed by Part VII of the Family Law Act1975, there are sufficient concerns and uncertainties surrounding both parties that require the Court to take a genuinely cautious approach in relation to the daily care of [the child].
2.Some of those concerns include allegations of drug use (by both parties) as well as allegations relating to violence. Of course, at such an early stage in the litigation, the claims and counter-claims as to the conduct of each parent, and what each of them consider to be in [the child’s] best interests, are unable to be tested or corroborated. Such is the nature of proceedings of this kind, and at interim hearings, as the Full Court observed in Goode v Goode [(2007) Fam LR 422 at 445 [81]].
3.In the light of the serious allegations adverted to, and in the light of the helpful submissions from the experienced legal representatives for each of the parties, the Court should take not only a cautious approach but especially a protective one towards [the child’s] immediate care and living situation. To that end, until matters between the parties are more fully ventilated, I think it more prudent that [the child] live with each of his Grandparents on a week-about basis.
4.I am also conscious that [the child’s] parents should continue to have every opportunity to foster a close relationship with him during the time that issues between them are in dispute. Living with his grandparents, from both sides of the family, will hopefully facilitate the nurturing of his relationship with both his Mother and Father in a secure environment, in accordance with ss.60B (1)(a) & (b), 60B (2)(b), 60CC(2) and 60CC (3)(j).
The orders of 27 September 2007
The matter next came before his Honour on 27 September 2007 when both parents were again represented by their solicitors.
On that occasion his Honour made orders for the separate representation of the child and for the child to live week about with each parent in the September/ October 2007 A.C.T. school holidays. His Honour also listed the matter for “an interim hearing” on 23 October 2007.
The federal magistrate’s orders and reasons for judgment of 23 October 2007
At the hearing on 23 October 2007 the parents were again both represented by their solicitors and Mr Lee appeared as the Independent Children’s Lawyer. In accordance with usual practice the matter proceeded on the basis of affidavit material and the Family Report which had been prepared by the court counsellor, and submissions from the legal representatives.
In addition to the order or notation continuing the orders of 7 September 2007, his Honour also made orders on 23 October 2007 for the parents to undergo urinalysis, for a further Family Report, and for both parents to spend time with the child during the school holidays in December 2007/ January 2008 and April 2008.
In his reasons for judgment in relation to the orders of 23 October 2007, his Honour commenced by citing certain passages from various High Court decisions in relation to so called “relocation” cases, apparently for the purpose, as explained in the first paragraph of his reasons, of placing “in perspective the responsibilities of the Court, as well as the responsibilities and sacrifices of parents”.
His Honour then returned to the decision to be made in the present case in the following final two paragraphs of his reasons (including footnotes which I will insert into the text):
5.In this matter, it seems to me that the best interests of [the child] are served by continuing the current orders (made on 7th September 2007), which provide that he reside with his respective Grandparents, on a week-about basis, that his parents continue to see him at those places of residence, and that this occur as frequently as possible. There is insufficient evidence, at this stage, to determine the veracity and weight to be placed upon the competing claims and assertions of each of the parents. [6. This accords with the observation of the Full Court in Goode v Goode, where their Honours said [at 81]: “In making interim decisions the court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child.” This is certainly the case here, although I am aided by both the Report of [the court counsellor] (dated 21st September 2007) and material provided by the Department of Disability, Housing and Community Services, to which I will refer shortly.]
6.Without expressing any final view on what weight to be attributed to it, there remains, however, sufficient contention, and in some respects evidence, in relation to what might be somewhat euphemistically called a degree of volatility [7. In this regard I simply note the definition of “family violence” in s.4 of the Family Law Act1975.] – in relation to both parents, but perhaps notably in relation to the Father - to warrant the Court to adopt a very cautious approach in relation to [the child’s] welfare. [8. In records before the Court from the (ACT) Department of Disability, Housing & Community Services (dated 4th September 2007), there are reports of the father punching the child (the Father allegedly admits smacking him), assault involving the Father’s current partner, and that a search had been conducted of the Father’s residence in the course of which a cross-bow was found under the child’s bed. As indicated, there are reasonably detailed accounts of contests between the Father and his current partner, including him “depositing” her belongings on the front lawn of his residence. There was also an altercation between the Father and his sister in which she sustained injury. The latter has been explained, to a degree, or now being regarded as a matter of history, while some of the “shouting matches” referred to are rationalised (my words) as being exuberant barracking while watching football games on TV, or in another instance, of [the father] having hit his thumb. At the very least, it seems that the exuberance on a number of occasions also excited neighbours to a degree sufficient to cause some alarm.] And as I indicated on an earlier occasion, there are not insignificant issues surrounding the actions of the Mother – some distant, some more recent - that also require a genuinely cautious approach by the Court in relation to the daily care of [the child]. That said, both parents should have every opportunity to foster the closest relationship with [the child] during the time that the issues between his parents are being resolved. While not expressed in these words, both my approach and the following orders, in my view, are not inconsistent with the submissions made by Mr Lee, the independent children’s lawyer. [9. This approach also accords, in the context and circumstances of these proceedings, with the statutory requirement of the Court to consider the best interests of the child as paramount [ss.60B (1)(b); 60CC (2)(b); & 60CC (3)(j) Family Law Act1975]. A close following of the judicial prescriptions detailed by the Full Court in Goode v Goode (2006) 36 Fam LR 422 and its emphasis on the requirement to follow “the legislative pathway” also accords with this cautious approach.] Certainly, he was of the view that at this interim stage, it was in [the child’s] best interests to have a stable location, namely Canberra, and therefore that he not be returned to Sydney. He also confirmed that [the child] should continue to spend significant time with both his Father and his Mother. As I have already indicated, that should occur in the more protective environments of both of his Grandparents’ homes, at least until the substantive issues between his parents are resolved. [10. In this regard, when the matter was before me in early September, I note that [the father’s] legal representative (Ms Burgess) specifically said that her client’s preference was that [the child] live with his grandparents, which would have the advantage of ensuring that [the child] spent time with both sides of his family.]
I have included his Honour’s footnotes notwithstanding their length because of the reliance placed on them in the submissions made before me by the legal representatives of the father and of the maternal grandmother.
The submissions made in support of and in opposition to the appeal and the conclusion in light of those submissions
As will be appreciated from the grounds of appeal which I set out earlier in paragraph 10, the essence of the father’s appeal was first, that his Honour failed in reaching his decision that the child should live week about with each of his grandmothers to have regard to the following matters (to which he was required to have regard under s60CC(3) of the Family Law Act 1975): the arrangement which had existed for the previous six years whereby the child had lived with his father and in relation to which arrangement there had been no previous complaint by the mother of risk to the child; the effect on the child of separation from the father; and the nature of the relationship between the child and each parent and each grandmother. And secondly that his Honour had failed to give adequate reasons for his decision having regard to the test in Bennett v Bennett (1991) FLC 92-191 whereby the Appeal Court should be able to discern expressly or by implication the path by which the decision had been reached.
In developing his submissions in support of the appeal, counsel for the father relied particularly on the requirement laid down by the Full Court in Goode and Goode (2006) FLC 93-286 that “the legislative pathway” now to be found in Part VII of the Act must be followed in interim parenting decisions, and on his Honour’s apparent failure to follow that pathway.
Despite its length, I consider it necessary to set out in these reasons the relevant passages from Goode, not only because it illustrates, with respect, the shortcomings in his Honour’s reasons, but also because it has relevance to the future course of this appeal:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
At the commencement of her submissions to me the solicitor for the maternal grandmother conceded that she could not cavil with the submissions made on behalf of the father which asserted both a lack of findings on his Honour’s part in relation to the matters specified in various sections of Part VII and also a lack of adequate reasons. It is therefore unnecessary that I dwell at any length on his Honour’s apparent failure to follow the pathway set out in Goode.
I need only say that although his Honour made reference to Goode and although he identified certain provisions in s60B and s60CC, he did not identify the competing proposals before him nor any agreed or uncontested relevant facts. Nor, apart from the matters referred to in s60CC (2)(b) and in s60CC(3)(j) being (again in summary) the need to protect the child from harm or family violence, did his Honour consider any other of the matters in s60CC(2) and (3) which were relevant (and which I have mentioned above when explaining the essence of the appeal). Furthermore his Honour did not determine whether the presumption contained in s61DA should, or should not, be applied in this case.
Notwithstanding the concessions which she had appropriately made regarding his Honour’s lack of findings in relation to the matters required by the Act to be taken into account and in relation to the adequacy of his reasons, the solicitor for the maternal grandmother endeavoured to support his Honour’s orders on the basis that there was ample evidence to establish that the child was in need of protection and that therefore the orders were in his best interests. I was taken to that evidence.
The maternal grandmother’s solicitor also sought to rely on s 60K of the Act. But after some discussion about the operation of that section and the relevant rules of court, I understood the maternal grandmother’s solicitor to accept that s 60K is in the nature of a case management provision, rather than a provision to be applied by the court in the actual determination of a case.
I agree that some of the evidence before his Honour could well cause concern for the child’s well-being. Indeed I would go so far as to say that given that evidence his Honour’s apparent desire to protect the child was understandable.
Nevertheless, as his Honour recognised in paragraph 2 of his reasons given on 7 September 2007 and in paragraph 5 of his reasons given on 23 October 2007, much of that evidence was controversial and certainly required to be tested. Other parts of the evidence (notably a report from the relevant child welfare department) could only be given the most limited weight.
Moreover, even if his Honour was entitled to place some weight on some of the evidence which was before him which might establish risk to the child in living with the father, it was also necessary for his Honour to balance that evidence against the evidence, apparently uncontested, of the long-standing arrangement whereby the father had been the child’s primary carer.
I would observe also in passing, and this is a matter which goes to the adequacy of his Honour’s reasons, that I find it a little curious that given his desire to protect the child, his Honour nevertheless provided in the orders made on 27 September 2007 for the child to live with each parent on a week about basis in the forthcoming school holidays, and then in his orders of 23 October 2007 for the child to spend half of all school holidays (until the final hearing of the case) with each of his parents.
For these reasons therefore, and notwithstanding the submissions made by the solicitor for the maternal grandmother, I consider that there is substance in the grounds of appeal pursued before me on the father’s behalf by his Counsel. I mention here that the submissions of Counsel for the father were adopted by the Independent Children’s Lawyer.
Future course of this matter
In the event that I was to find substance in the grounds of appeal, all parties wanted me to re-determine the matter rather than remit the matter to the Federal Magistrates Court for a further interim hearing.
It is not usual for appeal courts in this jurisdiction to re-exercise the discretion in cases concerning children. Nevertheless given that all parties urged me to do so, and given also that there is to be a final hearing of the matter in June, I indicated that I would be prepared to re-determine the matter in order to save the parties the expense and stress of a further hearing, and that I would do so on the basis of brief written submissions from the parties.
As discussed at the hearing on 27 March 2008, those further submissions should provide information (hopefully on an agreed basis) about the living arrangements for the child since he returned to Canberra (apparently on or about 14 September 2007) and also about certain criminal proceedings in the A.C.T. Magistrates Court (now apparently on appeal to the A.C.T. Supreme Court) concerning the father. It is necessary that the parties have the opportunity to put such updating material before me pursuant to the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-033.
The further submissions should also address briefly the matters referred to in paragraph 82 of the Full Court decision in Goode. Where it is submitted that a finding should be made regarding a matter contained in Part VII of the Act, a reference should be made to uncontroversial material in the affidavit material already filed, which would support such a finding.
As also discussed at the hearing on 27 March 2008, it would be appropriate that after the father’s legal representatives have prepared their submissions (and they should have three working days from the date of delivery of this judgment to do so), those submissions be provided to the paternal grandmother so that she can indicate in writing (within a further three working days) her agreement with the father’s submissions or add any matter she wishes. (Whether the paternal grandmother would record her position by an endorsement on the father’s submissions or by a separate document is a matter which I leave to the convenience of the paternal grandmother and the father’s legal representatives).
After the paternal grandmother has had an opportunity to indicate her position, the father’s legal representatives should forward the submissions of the father and of the paternal grandmother to the solicitor for the maternal grandmother, and to the mother, and to the Independent Children’s Lawyer.
The solicitor for the maternal grandmother should then have three working days from the receipt of the submissions of the father and paternal grandmother to prepare submissions in response. Those responding submissions should then be forwarded to the mother who should within three working days indicate in writing her agreement with the maternal grandmother’s submissions or add any matter she wishes. (I also leave to the convenience of the mother and the legal representatives of the maternal grandmother whether the mother simply adds an endorsement to the submissions of the maternal grandmother or whether she prepares her own document).
The legal representatives of the maternal grandmother should then forward her submissions and those of the mother to the father’s legal representatives, the paternal grandmother and the Independent Children’s Lawyer.
The Independent Children’s Lawyer should then within three working days prepare and forward to all parties any submissions which he would wish to make.
On receipt of the submissions of the Independent Children’s Lawyer, the legal representatives of the father should have a further three working days to prepare any reply they wish to make to the submissions of any other party (with copies of any such reply to all other parties).
It will then be for the father’s legal representatives to forward copies of all submissions to my Associate.
As I explained at the hearing on 27 March 2008, it is always possible that on a re-determination of the matter I may reach the same decision as Neville FM. In such an eventuality the appeal would not then be allowed (even though I had found substance in the grounds of appeal). It is for this reason that the only order I will make at this stage in relation to the appeal is that it be stood over for further consideration pending receipt by the court of the further submissions from all parties according to the program described in paragraphs 44 to 52 of these reasons.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 3 April 2008
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