HESFORD & HESFORD
[2015] FamCAFC 103
•4 June 2015
FAMILY COURT OF AUSTRALIA
| HESFORD & HESFORD | [2015] FamCAFC 103 |
| FAMILY LAW – APPEAL – CHILDREN – INTERIM PARENTING ORDERS – Where the father appeals against interim parenting orders which depart from an equal time arrangement to the children spending substantial and significant time with the father – Where the majority of the grounds of appeal challenge the weight which the trial judge gave to various factors – Where the trial judge was satisfied that the parties’ inability to communicate affected their capacity to continue to implement an equal time arrangement – Where the evidence is largely untested – Where error not established – Appeal dismissed. FAMILY LAW – APPLICATION IN AN APPEAL – Where application to adduce further evidence – Where the further evidence, if admitted, would not demonstrate that the order under appeal is erroneous – Application dismissed. FAMILY LAW – COSTS – Where the father failed to establish appellate error – Costs ordered. |
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 |
| APPELLANT: | Mr Hesford |
| RESPONDENT: | Ms Hesford |
| FILE NUMBER: | PAC | 5056 | of | 2012 |
| APPEAL NUMBER: | EA | 5 | of | 2015 |
| DATE DELIVERED: | 4 June 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 21 May 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 December 2014 |
| LOWER COURT MNC: | [2014] FCCA 3114 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Alexander |
| SOLICITOR FOR THE APPELLANT: | Philip Sim & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Kenny |
| SOLICITOR FOR THE RESPONDENT: | Rowlandson & Co |
Orders
The appellant’s application to adduce further evidence filed on 28 April 2015 be dismissed.
The appeal be dismissed.
Within twenty eight (28) days of agreement or assessment as to quantum, the appellant father pay the costs of the respondent mother in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hesford & Hesford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 5 of 2015
File Number: PAC 5056 of 2012
| Mr Hesford |
Appellant
And
| Ms Hesford |
Respondent
REASONS FOR JUDGMENT
By Notice of Appeal filed on 14 January 2015, Mr Hesford (“the father”) appeals against interim parenting orders made by Judge Donald on 18 December 2014 in relation to the parties’ children, E and T.
His Honour ordered that the parties have equal shared parental responsibility for the children (Order 1), that the children live with the mother (Order 2) and spend time with the father five nights in a row in each 14 and after school each alternate Wednesday (Order 3). Provision was made for the children to spend special occasions with the father and to share school holidays equally between the parties.
His Honour’s orders closely accord with the mother’s application and stand in contrast with the father’s position that a long-standing equal time arrangement should be continued pending a final hearing.
Although the Notice of Appeal indicates that the father only appeals in relation to the order that the children live with the mother (Order 2), it is understood he also challenges the amount of time they have with him pursuant to Order 3.
The father’s application for leave to adduce further evidence in the appeal filed on 28 April 2015 must also be considered. The further evidence is contained in his affidavit filed the same day and relates to events subsequent to the orders. The evidence goes to two issues. First, aspects are said to demonstrate that some of the grounds of appeal are even stronger than might otherwise appear. Secondly, in the event error is established, in support of the father’s position that rather than remit the proceedings for rehearing the matter is dealt with by way of re-exercise.
The mother seeks to uphold the decision of the primary judge and says the appeal should be dismissed. She agrees that the father should be given leave to pursue his application to adduce further evidence but says that application should be dismissed. The mother would seek to present further evidence and argues that the parties’ evidence would more appropriately be dealt with at a remitted interim hearing by a judge other than his Honour.
Pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”), the Chief Justice issued a direction that the appeal be determined by a single judge.
So as to provide context to the appeal, reference needs to be made to some key and apparently uncontroversial facts.
Background facts
The mother was born in 1971.
The father was born in 1973.
In 1999, the parties married.
Their daughter, E was born in 2002. At the time of hearing before his Honour, E attended C Public School where she was in her final year. In 2015, she would commence high school at B High School.
The parties’ son, T was born in 2004. He was in Year 4 at the same school attended by his sister. An issue had arisen about whether T would complete his primary school education at C Public School (the mother’s position) or possibly G Public School (the father’s position). The father’s idea being that at G Public School the child would attend school with children likely to attend the same high school he will.
The parties separated on 16 February 2011. It is common ground that up to that point, the mother had been primarily responsible for the children’s care. The father was also involved but not to the same extent.
Although they had separated, the parties continued to live in the same home.
On 10 May 2011, the parties entered into a Financial Agreement which addressed spousal maintenance and property settlement. In Recital X to the Financial Agreement, the parties recorded the future arrangements for the children would be:
·equal time with each parent;
·the father would meet the costs of sustenance and entertainment for the children when they are with him and the mother would meet their other expenses;
·that the children shall spend time with each of the parties as stipulated below for Week 1 and week 2 and then repeated:
- Week 1 – The children shall spend time with [the mother] on Monday, Tuesday and Sunday and spend time with [the father] on the other days.
- Week 2 – The children shall spend time with [the father] on Wednesday, Thursday and Friday and spend time with [the mother] on the other days.
- Equal time during school holidays throughout the year and at Easter and Christmas as agreed between [the parties].
- On other times as agreed between [the parties].
Notwithstanding their agreement in relation to the children’s living arrangements, the parties continued to reside in the family home until 13 March 2012, at which time the father moved out of the family home at Suburb C and to a property he bought at Town F. This is when the parties gave effect to their agreement for equal time.
Although there is some disagreement about how the parties implemented the equal time arrangement, there is no dispute that after the mother moved to Suburb G in about March 2013, the children’s living arrangements (but not necessarily extra-curricular activities) were as set out in [39] of the mother’s affidavit filed on 9 December 2014. Thus, the routine during school term was that:
In week 1:
·the children live with the mother from Monday through to 5.00 pm Wednesday;
·with the father from 5.00 pm Wednesday until after school Monday. On those Thursdays and Fridays, one or both children would come to the mother after school and were collected by the father at about 5.00 pm;
In week 2:
·with the mother from after school Monday until 5.00 pm Wednesday;
·with the father from 5.00 pm Wednesday until after school Friday, again with the children spending time with the mother after school until about 5.00 pm; and
·with the mother from after school Friday until the beginning of school Monday.
In September 2013, the mother commenced a relationship with Mr B. He was separated from his wife, Ms B, with whom he has three children.
In November 2013, the father commenced a relationship with Ms B.
What had been a reasonably cordial and co-operative parenting relationship between the parties thereafter began to come under some strain.
By February 2014 the parties no longer spoke to one another and all communication was by email or text message.
In July 2014, Mr B moved in with the mother as, when they are with him, did his three children, S (aged nine), L (aged seven) and M (who was five).
From 16 July 2014, the father began collecting the children from school on the days they were in his care. The effect of this was that the children no longer spent those five afternoons with the mother and the child E could no longer attend one of her extra-curricular activities.
The mother commenced proceedings for final and interim parenting orders in the Federal Circuit Court on 27 August 2014. It was her application that the children live primarily with her and they spend time with the father each alternate weekend from Friday afternoon to Monday and each Wednesday from after school until 8.00 pm.
By his Response filed on 25 September 2014, the father sought orders that the children live with him each fortnight during school term as follows:
·from after school Wednesday until before school Monday in odd numbered weeks; and
·in even numbered weeks from after school Wednesday until before school Friday.
The parties agreed that they should have equal shared parental responsibility and for the children’s school holidays to be shared equally between them.
On 1 October 2014, the parties attended a child dispute conference with a family consultant. It was the family consultant’s opinion that they “…appear[ed] to be in high conflict with limited effective means of communication”.
According to the father he and Ms B separated in October 2014. The mother disputed this evidence.
The applications for interim orders were heard by his Honour on 18 December 2014. Each of the parties was represented by counsel. The same day, his Honour made the orders under challenge for which he gave an ex tempore judgment.
The primary judge’s reasons
His Honour commenced his reasons by setting out the proposals of each of the parties, including the amendments to their applications summarised in their respective counsel’s case outline documents. Reference was then made to the restrictions on fact finding necessitated by the circumscribed nature of interim proceedings.
Part VII of the Act contained the principles by which the proceedings would be determined. At [14], his Honour adopted the background and uncontentious facts referred to in counsel for the mother’s case outline document. No error is asserted in relation to his Honour’s statement of the law and it is appropriate to turn to his analysis of the ss 60CC(2) and (3) factors which he found were relevant.
His Honour was satisfied that until separation, the mother was the children’s primary carer and since then, the children’s time had been divided equally between the parties. The contested nature of the evidence meant he was unable to accept the mother’s contention, that notwithstanding the equal time arrangement, the preponderance of the children’s time was spent with her.
After he found it was beneficial for the children to have meaningful relationships with both of their parents, his Honour accepted the evidence that prior to separation T’s relationship with the father was not as good as it could be.
Reference was then made to evidence given by the mother of verbal abuse by the father towards T but, taken at its highest, that evidence did not engage the risk and protection considerations contained in s 60CC(2)(b). After all, as his Honour noted, it was the mother’s case that the children should have substantial and significant time with the father.
The additional considerations found in s 60CC(3) were then discussed. There was no evidence that the children held views one way or the other about the mother’s desire to change their existing equal time arrangement. In the absence of evidence about the children’s views, his Honour was not satisfied he could infer from that absence that the children favoured the continuation of their existing circumstances [22].
The children had meaningful relationships with each of their parents and it was common ground that E enjoyed a loving relationship with the father. T’s relationship with the father had improved in recent times.
The parties’ contributions towards the children’s expenses was in accordance with their financial agreement, albeit, the mother had obtained a child support assessment which the father sought to vary. The level of financial support which the father provided was not persuasive of either outcome.
By way of background at [27]-[32] his Honour said:
27.Turning to paragraph (d). I note the mother’s concerns that as against the proposal for a continuation of equal time, the problems are that the children are travelling extensive distance or at least time, so that the children can attend school whilst the children are in the father’s care.
28.It is asserted by the mother, and apparently accepted by the father, that the children, [T] at least, is fatigued in relation to that travel and the father refers to the circumstances in which [T] is fatigued in his affidavit where he indicates that [T]:
[T] does on occasions .... still in the car when we are driving home and I have asked him why he does that and he said “That it is because I feel relaxed and it is quiet”. But nonetheless he does acknowledge that the father has the same concerns, particularly about [T] being fatigued, when he collects the children after they have been in the mother’s care.
29.The mother is also concerned about the poor communication between the parties and the impact that that has upon the capacity of the parties to co-parent. That seems to be a common position between the parties because in the child dispute conference memorandum to the court, at the bottom of page 2 of that report, I quote:
The parties advise that they were currently unable to communicate effectively regarding the children. They said that they use email and text message when necessary. [The mother] alleged that [the father’s] communication was aggressive and threatening. [The father] said that he was civil in his communications but [the mother] was passive aggressive and short. He added that she often did not respond to his communications in a timely manner.
30.It is submitted by the mother that if the arrangements were to change such that the arrangements were in accordance with her amended orders sought, then the effect of fatigue upon the children would be diminished particularly in relation to [T], because the travel for the children would be reduced on two days per fortnight.
31.Similarly, any difficulties that may arise in relation to co-parenting would be reduced because, again, the children would be with the father on two less occasions.
32.If the arrangements were to continue as they are now, then the current difficulties with fatigue and poor communication would remain. It was submitted on behalf of the father, that is not to say that the problems as far as communication were concerned, might be ameliorated by the father having the children for greater time. That would still leave, of course, the impact of significant travel for the children and would exacerbate the problem of fatigue, which has been recognised by both parties.
(Original emphasis)
His Honour had regard to various documents which showed the father spoke of T “…in a poor way, in a derogatory way…” [35].
At [36], his Honour emphasised that the equal time arrangement had been in place for some time and that this was a relevant consideration. It was noteworthy that it was during the equal time arrangement that T’s relationship with the father improved.
The presumption of equal shared parental responsibility applied and, thus, his Honour turned his attention to whether it was in the children’s best interests and reasonably practicable for them to spend equal time with each of their parents. In so doing, he repeated his earlier remarks that the father sought to maintain an equal time arrangement which had been established by agreement.
The mother’s arguments against equal time were considered first. It would seem that his Honour accepted the father’s evidence it was about 45 minutes from the children’s school to his home and the evidence of both parties that T is fatigued. An equal time arrangement would thus, “…apparently maintain the fatigue levels that the child is currently experiencing” [41].
Communication issues were then discussed and notwithstanding evidence tendered in the father’s case which seemed to suggest communication between the parties had improved, greater weight was attached to the parties’ representations to the family consultant set out at [29] of his reasons and to which reference has already been made.
As he was required to do, his Honour then addressed s 65DAA(5) which is the provision which defines the term “…reasonably practicable”. At [43], it can be seen that his Honour took into account that the mother’s home was 15 minutes from the children’s school compared to the father’s at 45 minutes. His Honour’s reference to the distances between the parties’ homes is to the fact that they live approximately half an hour drive from each other.
His Honour accepted that the parties’ inability to communicate effectively could make it difficult to manage the children’s travel and an equal time arrangement. As to the latter, reference was made to issues that had arisen in relation to school and extra-curricular activities.
Balanced against those matters, T’s relationship with the father had improved under the current equal time arrangement. Nonetheless, his Honour determined that the equal time arrangement was not reasonably practicable and would not be in the best interests of the children.
Thus, he turned his attention to the mother’s proposal of substantial and significant time.
His Honour posed and answered the question “[t]he father quite rightly contends, well, what is the difference” [46]. In answering that question, the ratio of the decision is revealed:
46. …Two days. But it is two days out of 14 that the child would not have to travel as far, that he may not be as fatigued and it is two days in relation to which the communication difficulties will perhaps not impact on the lives of the children.
In coming to his decision that the mother’s proposal for substantial and significant time was reasonably practicable, he took into account that she acknowledged that it was and that the quality of the children’s relationship with the father meant that it would be in the best interests of the children. His Honour was particularly cognisant, at [48] that his orders would implement a different arrangement to those which existed and that the children would continue to benefit from a meaningful relationship with each of their parents.
His Honour was concerned that the mother’s proposed orders meant that the children in each fortnight would have eight days without contact with the father which he thought was too long and so provision was made for the children to spend time with the father after school each alternate Wednesday, albeit not overnight.
A family report was ordered and the matter is listed for mention in December 2015. The significance of that date is the parties understand there will not be a final hearing until sometime during 2016.
The grounds of appeal
Because the majority of the grounds of appeal challenge the weight which his Honour gave to various factors, it is helpful if the general approach to weight challenges is set out at the outset. For the reasons given by Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519, in appeals concerned with an error of law it is difficult to succeed on a purely weight challenge. Stephen J said:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge.
This approach to appellate intervention is particularly acute where the order under appeal concerns children and is based on the primary judge’s determination of the best interests of the child. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ at [151]:
…absent legal error or a plainly unjust result, the order of the primary judge must stand, irrespective of any views that the appellate judges have about the conclusions of the primary judge.
This is because:
It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require.
(CDJ v VAJ at [152])
The point being that judges can come to different but nonetheless reasonable conclusions.
Ground 1 – The Judge erred in that he gave too much weight to the alleged “tiredness” of the child [T] in circumstances where that fatigue was only marginally relevant and was the subject of contested evidence
The first question raised by ground 1 is whether his Honour misstated the father’s evidence given in response to the mother’s evidence that T was constantly fatigued. This was discussed by his Honour, at [28] and is set out earlier in these reasons.
At [28], his Honour correctly identified that within the context of the current equal time arrangement there was apparent agreement that T was fatigued, as at times was E. Although the parties disagreed about what the cause might be, his Honour recorded the father’s evidence that on occasion T slept in the car on the way home from school. In saying this, his Honour captured the agreed facts and did not prefer the evidence of either party in relation to the contentious causation issue. There is no misstatement of the evidence.
There is no doubt that his Honour gave weight to T being tired as one of the reasons why the existing arrangements should be altered. Under the existing arrangements, the father picked the children up or delivered them to school 10 times each fortnight. In practical terms, this involved at least an additional 30 minutes each way than it would be from the mother’s home. As his Honour explained, at [41], if no changes were made to T’s living arrangements, he would continue to be fatigued. In other words, it was in T’s best interests to consider whether his living arrangements might be adjusted so that he was not as tired.
The argument advanced by counsel for the father segued into an assertion that if tiredness was actually a factor in his Honour’s decision to change the children’s living arrangements, he would have made a greater reduction in the number of trips required from the father’s home to school. However, as the remaining grounds of appeal demonstrate, T’s fatigue is but one of a number of factors which weighed in favour of the changes ordered, all of which were balanced with factors which weighed in favour of the father being significantly involved in the children’s care. In circumstances where it cannot be said that his Honour could not place any weight on the fatigue issue, that someone else may have taken a different view as to its significance does not establish error.
This ground is not made out.
Ground 2 – The Judge erred in that he failed to give sufficient weight to a routine which had been in place and operating effectively for 2.5 years
This ground misstates the facts. True it is that in one form or another that from when the parties lived in different houses, there was a seven night/seven night split of the children’s time each fortnight. However, the status quo changed in July 2014 when the father put an end to a longstanding arrangement of the children coming to the mother’s home after school, even on days when they lived with him. This reduced the amount of time the children were used to being in the mother’s care and for the first time there days during the week when they did not see her at all. Those arrangements had been in operation for approximately four and a half months.
That said, his Honour was well aware that he had been asked to change the children’s current living arrangements and to reduce the number of nights they were used to being in their father’s care ([17], [22], [27], [31], [32] and [36]).
Again, this ground of appeal concerns the weight which his Honour in the exercise of his discretion gave to the duration of the equal nights arrangement compared to other factors. It has not been shown that proceeding in the manner which his Honour did, he erred.
This ground will fail.
Ground 3 – The Judge erred in that he gave too much weight to the alleged poor communication of the parents in circumstances where the evidence supported the proposition that communication between the parents had been sufficient to support an equal time arrangement for 3.75 years
Again, the focus of ground 3 is on the weight which his Honour gave to the parties’ ability or, more accurately, inability to communicate. To the extent that the use of the words “alleged poor communication” might suggest that whether or not the parties were able to communicate about the children was contentious, one need only refer, as his Honour did, to the information the parties provided to the family consultant. This has already been set out and need not be repeated beyond noting that the parties agreed they were unable to communicate effectively about the children. Indeed, it was common ground they had not spoken since February 2014 and the tenor of both parties’ evidence was to the effect that their parental relationship was at an all-time low.
Because his Honour was asked to make and went on to order that the parties have equal shared parental responsibility, as a consequence of s 65DAA(5) of the Act, he was required to consider the parties’ current and future capacity to communicate. This he did and he was satisfied that their inability to communicate adversely affected their capacity to continue to implement extra-curricular and school activities in the manner they had previously or to resolve and implement the types of day to day issues that had already arisen in the equal time arrangement.
His Honour was entitled to accept the information which the parties gave to the family consultant about their inability to communicate and he was obliged to treat that issue as a relevant matter. There can be no doubt that he was entitled to give this factor the weight which he did.
Ground 3 is not made out.
Ground 4 – Even if it was open for the Judge to find that current communication between the parents was poor, the Judge erred in that he failed to give sufficient weight to the circumstances which had brought that about or to the manner in which those circumstances had changed prior to the hearing
The focus of ground 4 is on the circumstances which led to the deterioration in the parties’ ability to communicate. Namely, that after the mother re-partnered with her current partner, the father re-partnered with the mother’s partner’s ex-wife. Counsel for the father explained that it would have come as no surprise that these partnering rearrangements provoked complex emotions and relationship difficulties. Thus, his Honour ought to have contemplated that because the father said he had recently ended his relationship with the mother’s partner’s ex-wife, the parties’ previously workable communication about the children might be retrieved.
However, whether or not the father had ended his relationship with the mother’s partner’s ex-wife was controversial. The father said he had but the mother adduced hearsay evidence which suggested he had not. Given the circumscribed nature of interim hearings and the cautious approach to fact finding, it is difficult to see how his Honour could have found that the father’s relationship had ended.
But even if his Honour could have made that finding, it does not follow that he could or should have found that the parties would retrieve a sufficient level of communication to continue to implement the current living arrangement.
Error as suggested by ground 4 has not been established.
Ground 5 – The Judge erred in that (a) having found that the parties should have equal shared parental responsibility; and (b) having found that it was practicable for the children to have substantial and significant time with their father the Judge failed to properly consider whether it was practicable for the children to spend equal time with their mother and father
The focus of this ground is on the difference in the amount of time which was ordered and an equal time order. Counsel for the father explained the error in the following terms:
47.…his Honour put in place a care arrangement that provided, not only for the Appellant to spend five nights per fortnight with the children, but an additional evening with them. His Honour found that arrangement practicable. If that was so, it must also have been the case that his Honour would have found the same about an equal time arrangement. In any event, it had been shown to be so over an extended period of time.
(Appellant’s Summary of Argument filed 24 April 2015)
This ground of appeal does not do justice to his Honour’s reasons. True it is that the parties’ inability to communicate and the manner in which it had already affected the children’s school and extra-curricular activities, meant that an equal time arrangement was not reasonably practicable. However, his Honour was also satisfied that an equal time arrangement would not be in the best interests of the children.
At [46], his Honour engaged with counsel for the father’s argument that there was little difference between the current arrangements (equal time) and the five night to eight night arrangement (substantial and significant time) sought by the mother. In deciding in favour of substantial and significant time, his Honour took into account that the mother implicitly acknowledged that arrangement was reasonably practicable and that it provided at least some relief to the children of the impact on them of their parents’ inability to communicate and for the child T, two days when he need not travel so far. There is no doubt that his Honour balanced those matters by placing weight on the importance to the children of ensuring they spend substantial time with the father and that the children continue to enjoy the benefit of their meaningful relationships with him. In so doing, as his Honour clearly suggests, at [46] and [47], he made a finely balanced decision and settled on a suite of orders that, on the evidence, was available.
Ground 5 has not been established.
Ground 6 – The Judge erred in that he failed to give sufficient weight to the best interests of the child [E] in determining the application
Each of the parties approached the hearing before his Honour on the basis that the children’s interests would be determined globally, taking into account the totality of their circumstances. It was common ground that the same suite of orders should operate in relation to both children. The point being, the parties agreed that the children benefited from living together and that the sibling relationship should not be disrupted.
The gravamen of the argument is because there was no evidence E was fatigued, his Honour should not have made orders which changed her living arrangements predicated upon the fact her brother was fatigued. Although it is somewhat repetitive to say so, his Honour was entitled to place weight upon how the current arrangements affected the child T when determining arrangements which would be in the best interests of both children. On a fair reading of the judgment, there can be no doubt that his Honour was satisfied that even if the orders proposed by the mother were made, E’s loving relationship with her father would continue.
This ground has not been established.
Ground 7 was abandoned.
Application to adduce further evidence
By his Application in an Appeal filed on 28 April 2015, the father sought leave to adduce further evidence in the appeal pursuant to s 93A of the Act. The further evidence being his affidavit filed the same day in which he deposes to improvements in the parties’ ability to communicate, the children’s views about the orders, conversations with the children which suggest the mother’s relationship with her partner might be coming to an end and a number of other matters.
Although the father’s application was filed contrary to directions made in relation to the appeal, the mother is content that the application be determined on its merits.
In CDJ v VAJ, McHugh, Gummow and Callinan JJ said at [109]:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
At [117], [118] and [119] their Honours explained why it is that in parenting cases the discretion to admit further evidence needs to be exercised with “much care”. No more so than when the evidence sought to be adduced concerns the effect on the children of changing their circumstances, the point being that “[i]n all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations”.
It is not accepted that if the further evidence was admitted in the appeal, it would demonstrate that the order under appeal is erroneous. It is generally similar to the evidence which his Honour considered. In relation to the children’s statements in favour of the previous arrangements, it could not be accepted as compelling evidence on the point or more than their learning to adapt to their changed circumstances. It is better for these issues to be explored at a final hearing.
The further evidence application will thus be dismissed.
Conclusion and costs
The father has failed to establish appellate error and the appeal will be dismissed. In the event the father was unsuccessful, the mother sought an order for costs which he opposed. Counsel for the father submitted that the father was solely motivated by a desire to promote the best interests of the children and he ought not be penalised. I accept he was so motivated. However, the fact that the father has been wholly unsuccessful warrants greater weight and amounts to justifying circumstances and makes it proper for an order that the mother receives her costs.
An order will be made that the father pays the mother’s costs of this appeal. Absent agreement as to the amount, it will be assessed.
I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 4 June 2015.
Associate:
Date: 4 June 2015
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