HORTON & GUAN
[2010] FamCAFC 32
•8 March 2010
FAMILY COURT OF AUSTRALIA
| HORTON & GUAN | [2010] FamCAFC 32 |
| FAMILY LAW - APPEAL – Appeal against a discretionary judgment – Decision of Federal Magistrate allowing the mother to travel to China with the child for a short period – Evaluation of risk that the mother will not return to Australia – Management of risk by requiring bond to secure the child’s return – Evaluation of risk of harm to the child if travel allowed – No error established FAMILY LAW - PROCEDURAL FAIRNESS – Whether a family report should have been ordered – Where the Federal Magistrate considered and rejected the utility of a family report – adequate reasons provided – No error established – Appeal dismissed FAMILY LAW - EVIDENCE – Application to adduce further evidence – Where evidence would not have affected the orders under appeal – Application dismissed |
| Family Law Act 1975 (Cth) |
| Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Mr Horton |
| RESPONDENT: | Ms Guan |
| FILE NUMBER: | PAC | 1115 | of | 2007 |
| APPEAL NUMBER: | EA | 139 | of | 2009 |
| DATE DELIVERED: | 8 March 2010 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May, O’Ryan and Crisford JJ |
| HEARING DATE: | 1 February 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 October 2009 |
| LOWER COURT MNC: | [2009] FMCA fam 1072 |
REPRESENTATION
| ADVOCATE FOR THE APPELLANT: | Mr Horton appeared in person |
| ADVOCATE FOR THE RESPONDENT: | Ms Guan appeared in person |
Orders
The father’s application in an appeal filed 25 January 2010 is dismissed.
The father’s appeal against the orders of 14 October 2009 is dismissed.
There is no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Horton and Guan 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 SYDNEY |
Appeal Number: EA 139 of 2009
File Number: PAC 1115 of 2007
| Mr Horton |
Appellant
And
| Ms Guan |
Respondent
REASONS FOR JUDGMENT
Introduction
On 14 October 2009 Federal Magistrate Purdon-Sully made an order permitting the mother to take the parties’ 4 year old son to the People’s Republic of China (“China”) for a holiday. The Federal Magistrate made further provision for annual holidays to China of up to 30 days duration on each occasion.
The orders, relevantly, also provide for the issuing of a passport in the child’s name and for the deposit by the mother of a $5,000 bond to secure the child’s return to Australia after periods away. China is not a signatory to the Convention on the Civil Aspects of International Child Abduction.
The father filed his Notice of Appeal on 11 November 2009. He appeals all the orders made. On 2 December 2009 the Federal Magistrate stayed the orders she made on 14 October 2009 until further order.
On 25 January 2010 the father filed an Application in an Appeal. He seeks leave to adduce further evidence in the appeal as detailed in an affidavit which he swore on 22 January 2010.
Background
Before both the Federal Magistrate and this Court the parties were self-represented. It is apparent that English is not the mother’s first language and from time to time she was assisted by a translator.
The mother is aged 44 and was born in China. She has permanent residency status in Australia and in August 2009 she applied for Australian citizenship.
The father is aged 56 and was born in Australia. He is an Australian citizen.
The parties married in Australia in 2003 and separated in early 2006. Their son was born in 2005 and he is the only child of their marriage.
An order was made in the Family Court of Australia on 19 September 2008 by which, inter alia, the child lives with the mother and spends time with the father each week from 3.00 pm Friday to 6.00 pm Saturday.
It is useful to consider the father’s appeal against a backdrop of the manner in which the proceedings before the Federal Magistrate were conducted.
On 22 July 2009 the mother filed an Initiating Application (Family Law) in the Federal Magistrates Court at Parramatta seeking final orders that the child be permitted to leave Australia for an indefinite period.
In support of this application the mother filed two affidavits. The first affidavit affirmed on 21 July 2009 identified the reasons she wished the child to go to China and her acceptance of a court order limiting the duration of any visit.
Her second affidavit filed on 16 September 2009 identified the dates of her visit as being from about 6 March 2010 with a return by 18 April 2010. She also outlined her proposal to furnish a bond of $5,000.
The father resisted her application by his amended response filed 23 September 2009. In an affidavit filed at the same time he raises, amongst other concerns, the assertion the mother will not return to Australia at the end of any such travel to China.
At the hearing on 25 September 2009 the Federal Magistrate raised with the mother the apparent inconsistency between the child leaving Australia for an indefinite period and leaving for visits of set duration:
HER HONOUR: All right. In that document the order that you’re asking the court to make is that the child, [R], be permitted to leave Australia for an indefinite period.
MS GUAN: Yes.
HER HONOUR: Right.
MS GUAN: Just short period.
HER HONOUR: Sorry?
MS GUAN: Just a short period, for six - - -
HER HONOUR: Right, well, that’s not what “indefinite” means, and that’s why Mr Horton was raising the issue.
MS GUAN: Yes, I file another one - - -
HER HONOUR: In your affidavit – in your affidavit you seem to be saying that you want to take him away in 2010 for about four to six weeks; is that right?
MS GUAN: Yes.
HER HONOUR: All right, well, that’s not what the order says. The orders says – what the order means – and you might need your interpreter. I might get the interpreter to say this. The order is that:
The child of the parties, namely, [R] Guan, born on … 2005, be permitted to leave Australia for an indefinite period.
That means for ever?
MS GUAN: No, I file another one, your Honour, on - - -
HER HONOUR: What date did you file that?
MS GUAN: I filed the last – last Wednesday. I got two - - -
HER HONOUR: Have you got a copy of it?
MS GUAN: Yes.
HER HONOUR: Just hand it up to my associate and I’ll have a look at it.
MS GUAN: Yes, yes.
HER HONOUR: Because the only one that I seem to have is that.
MS GUAN: I said I ….. day about six weeks.
HER HONOUR: Well, that’s an affidavit.
MS GUAN: The last question – the last, number 4, I think I said I would like to leave Australia on 6 March next year.
HER HONOUR: Yes.
MS GUAN: I’ll be back in six weeks.
HER HONOUR: Yes. No, I read that affidavit and I’m not criticising you, you’re not a lawyer, right, but you filed this application where the order that you’re telling me that you want me to make is that your son be able to leave the country indefinitely, for an indefinite period. Just show Ms M this.
MS GUAN: No, no.
HER HONOUR: No?
MS GUAN: Maybe it’s a mistake. I just want a holiday with my second mother.
HER HONOUR: Yes. No – and that’s obvious from your affidavit evidence.
MS GUAN: Yes.
After some further clarification the Federal Magistrate continued:
HER HONOUR: All right, well, I’m going to give you leave to amend your application, filed on 22 July 2009, to seek an order from this court that you be permitted to take [R] to China, from – leaving on 6 March 2010 and returning on 8 April. All right, just take a seat for a moment. Now, sorry, before you do that, that’s your application and you’ve got an affidavit in support, which is the affidavit filed on 16 September 2009; is that right?
The father agreed to such leave being granted. The matter then proceeded. Both parties gave evidence and were cross-examined.
On 14 October 2009 the Federal Magistrate published her Reasons for Judgment and pronounced orders in this matter. Prior to doing so she raised one further issue The mother appeared in person and the father was available by telephone link:
HER HONOUR: Yes. Let me know if there is any problem with the audio, will you. Just before – there is just one issue that I need to raise with both of you, I need some further submissions from you on.
Ms Guan, as I understand it, you are seeking to travel to China dates between March and April 2010. Is that right?
MS GUAN: Yes.
HER HONOUR: If I was minded to make that order, and on the assumption that you complied with the terms of the order, is it your position that in the future you may want to travel to China again, given your mother’s health concerns and the other issues that you have raised?
The mother agreed it appropriate the Federal Magistrate deal with future travel. After an exchange with the father in which he opposed any future travel her Honour proceeded:
HER HONOUR: Mr Horton. Mr Horton, this is not an opportunity for you to make further submissions to me in relation to a trial that I have conducted. I am just inviting you now, if you want to, to make submission to me on this, this one issue only. If it is the case that I am minded to allow her to go to China in March/April next year, and on the assumption that on her return she complies in every respect with the order that I make, is there any - - -
MR HORTON: But she will not return.
HER HONOUR: Mr Horton, listen to me, please. And do not - - -
MR HORTON: Why? It is all garbage. It is like the war we have because of the weapons of mass destruction. There was no weapons of mass destruction. And there is no return from China. Do you understand?
HER HONOUR: I take it – I take it you do not – Mr Horton, do not speak to me in that fashion, please. You are being extremely disrespectful to me - - -
MR HORTON: I – no - - -
HER HONOUR: - - - and disrespectful to this court. And do not talk over me, again.
MR HORTON: I - - -
HER HONOUR : I take it that you do not want to make any submissions to me. I will ask you again. I will ask you one more time. Do you want to make submissions to me, as I have invited you to do, on that point?
MR HORTON: Not on that – this is ridiculous.
HER HONOUR: All right, you do not. Thank you very much. Yes, thank you. Now, just bear with me for a minute. Yes, thank you. I am proposing to publish my reasons in this matter, and I am proposing to make the following orders. Firstly, that the mother be permitted to take the child [R] Guan, born on … 2005 - - -
Due to the father’s further interjections the telephone link was disconnected. Orders were then pronounced in his absence.
Grounds of appeal
The essence of the argument agitated by the father in the appeal is the assertion the Federal Magistrate failed to properly evaluate the risk to the child of not being returned to Australia.
Superimposed on this complaint is that the Federal Magistrate conducted the hearing without due regard to procedural fairness such that it was “without justice”.
The father’s application to adduce further evidence is primarily aimed at highlighting what he says is a risk to the child’s health if he remains in China for any length of time.
In the circumstances of this appeal it is convenient to deal with the application to adduce further evidence in the context of the actual grounds of appeal.
Applicable principles
This is an appeal against a discretionary judgement. The principles governing such an appeal are well known. In House v The King (1936) 55 CLR 499 Dixon, Evatt and McTiernan JJ said at 504-5:
… The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
In Bellenden (formerly Satterthwaite) v Satterthwaite [1948] 1 All ER 343 at 345 Asquith LJ said:
… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.
In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J said at 519–520:
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. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight.
The application for further evidence is governed by the provisions of s 93A of the Family Law Act 1975 (Cth) and has been given the benefit of consideration by the High Court in CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828 where the majority, McHugh, Gummow and Callinan JJ, said:
[104] In the exercise of the discretion conferred by a power such as s 93A(2), the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in WollonGuan Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion. In an application at common law to admit further evidence, the court applies principles, bordering on fixed rules. In an application under s 93A(2) and similar provisions, the Full Court or Court of Appeal weighs factors, although it may of course develop guidelines for weighing those factors and exercising the discretion. [footnotes omitted]
Their Honours further explained how the discretion may be exercised:
[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.
…
[111] … The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial. [footnotes omitted]
Discussion
The father’s application seeks to have received in evidence the following documents:
·The child’s action plan for anaphylaxis dated 18 December 2009;
·A psychological evaluation by Mr S (Clinical Psychologist) of the child dated 11 October 2009;
·A letter from Dr C (Consultant Paediatrician) about the child’s behavioural problems dated 26 September 2008; and
·A letter from Dr G (Clinical Fellow) regarding the child’s allergies dated 7 January 2010.
At the hearing of the appeal the father also sought to introduce the following material into evidence:
·Transcript of proceedings before Justice Collier on 12 May 2009 which related to an appeal by the father against an executed recovery order; and
·Affidavit of the mother filed 20 January 2010 in the Family Court of Australia at Parramatta seeking suspension of the existing orders for the father to spend time with the child or supervised contact pending determination by the Local Court at … of an allegation the father assaulted the child.
The mother consented to our receiving:
·The child’s action plan for anaphylaxis; and
·The letter from Dr C,
and she did not oppose our receiving:
·The transcript on the basis we understood there was a background to that particular hearing, full details of which were not before us; and
·The affidavit, noting however it should have no bearing on the appeal.
She opposed our reception of the remaining two documents.
The power to adduce further evidence is to ensure the proceedings do not miscarry. In order to properly evaluate whether, here, this power is appropriately exercised, we return to what we see as being the nub of this appeal; namely, whether the Federal Magistrate’s discretion miscarried when she found there was no significant risk in the mother failing to return to Australia and that if there was any such risk, it could be managed.
The father complains that at the court event on 14 October 2009 he had no proper opportunity to present all the evidence he had wanted to in order for the Federal Magistrate to evaluate the risk to the child of remaining in China.
The court event of 14 October 2009 was for the delivery of judgment. Prior to this a discrete matter was raised by the Federal Magistrate relating to ongoing short annual visits to China. Both parties were invited to make submissions on that issue. The father declined.
It is not suggested this discrete matter raised any new or different matters from those canvassed in the earlier proceedings. The possibility of such further visits was clearly predicated on a finding the mother would return to Australia in April 2010.
We must consider whether or not the orders should be treated as “erroneous” in the sense discussed by the High Court in CDJ v VAJ (supra) at [109]. To that end a significant issue is what the likely effect of any further evidence would have been on the outcome of the trial.
The father gave various reasons as the purpose for which he sought to adduce further evidence. He said his further evidence would assist in demonstrating the mother will not return to Australia with the child and that the child’s life is at risk if he remains in China. It is to the effect of the further evidence that we now turn.
It is common ground the child has long standing food allergies which need monitoring and appropriate action when and if certain foods are ingested by him.
The action plan for anaphylaxis dated 18 December 2009 confirms this. The letter by Dr G confirms the mother’s contention the child has been under the care of a medical specialist for some time. There is nothing in the medical evidence sought to be adduced by the father that points to the child being at any particular risk in the mother’s care. His health condition, which is monitored and treated, was a known factor well prior to the hearing.
The father says the purpose of us receiving the transcript of the hearing before the Honourable Justice Collier is to show the mother’s irresponsible attitude to the child’s health.
In our view, the transcript of earlier proceedings based primarily on oral submissions and the untested evidence of the parties would not achieve the purpose suggested by the father. It is unlikely to demonstrate the orders under appeal are erroneous.
These three pieces of evidence are to be viewed in light of the father’s own evidence found in paragraph 3 of his affidavit filed 25 January 2010 where he deposes:
3.At the previous hearing on 25.09.09 Magistrate Purdon-Sully was only concerned about the legal issue concerning travel and return with his mother on that basis. And for a short time if the mother took safe food/drink for the holiday, that would be reasonably acceptable. But for a long period it is not acceptable because our son [R] will be mixing with other children at school etc, if he dos’nt [sic] return to Australia and that is where the risk could be fatel [sic]. And this is the major concern for me. Hence, I do not aggree [sic] with the travel with his mother without a chaperone or substancial [sic] security. (emphasis added)
He confirmed before us he considered short stays in China were acceptable on the basis that safe Australian food could be taken abroad.
The plurality in CDJ v VAJ (supra) placed the following limitation on the power to admit further evidence which may be useful to determine an appeal:
[113] In any event, we cannot accept that the discretion to receive further evidence is so wide that the Full Court can admit further evidence merely because it is useful. Such a criterion is inconsistent both with the nature of the appellate jurisdiction exercised by that Court and with the perceived purposes of s 93A(2).
Whilst the evidence may be of marginal use it would not, in our view, have changed the outcome at trial.
We now turn to the evidence about the child’s behaviour. It appears common ground that as early as 2008 he was exhibiting behavioural problems which were then diagnosed as Attention Deficit Hyperactivity Disorder or ADHD by Dr C and reported on in his letter of 26 September 2008.
A clinical psychologist’s report dated 11 October 2009 was procured at the father’s request, after the first hearing but before delivery of judgment. The mother had no input into the report which states the child’s condition was then consistent with a diagnosis of Oppositional Defiant Disorder or ODD. The diagnosis was based on a history provided by the father and observations of the child during the interview. The father had reported the mother’s intention as to relocate to China permanently.
The clinical psychologist noted the father’s “permissive parenting style and poor ability to control [the child’s] behaviour”.
In our view, both Dr C’s letter, which was available prior to the hearing, and the subsequent report of the clinical psychologist have little to do with the question of the child remaining in China or spending discrete holiday periods in China. We do not accept it is material relevant to the decision the Federal Magistrate was called upon to make.
The final piece of evidence sought to be adduced is the mother’s affidavit filed 20 January 2010 in the Parramatta Court.
Our attention was drawn by the father to the witness statement made by the child on 30 December 2009 to a senior police constable. It is reported as follows:
Q32. When daddy hit you, what does he hit you with?
A32. With his hand. Like AARRRRRH!
([R] yelling and slaps his left cheek with open palm)
Q33. So he had his hand like yours, flat?
A33. Yes. He just hates me. He doesn’t like me.
Q34. Did he say that to you?
A34. No he doesn’t say that but mommy told me.
Q35. What happened when daddy hit you? When you went home?
A35. I just go home. I didn’t do anything wrong!
The father said this shows the mother’s irresponsibility towards both him and the child.
We are not satisfied the content of the affidavit with its attachments is further evidence of any question of fact relevant to the decision made by the Federal Magistrate. We do not consider it demonstrates the Federal Magistrate’s orders were erroneous.
Despite the fact the mother consented or did not oppose the reception of some of the evidence sought to be adduced, it is clear she did so on the basis it bolstered her case to some extent or made no material difference to it. We are not satisfied any of the evidence would have had any effect on the orders under appeal and for that reason we reject it in total.
Returning to the issue of procedural fairness, the father is critical that the Federal Magistrate did not order a family report to assist her in dealing with the matter on 25 September 2009.
Family Report
Neither party requested the preparation of a family report, however, it was dealt with by the Federal Magistrate in her Reasons for Judgment as follows:
21.There was no Family Report prepared with respect to the discrete issue I was asked to determine.
22.Whilst it was open to me to order the preparation of a family report it is unlikely in my view that it would have been of assistance for these reasons:
a)[R] is only four (4) years old. It is unlikely given his age that I would place significant is [sic] any weight on any expressed wish to travel overseas;
b)The proposed travel involved [R] accompanying his primary and historical carer;
c)The proposed travel abroad was not lengthy;
d)There was no suggestion that [R] would be at risk of physical harm or that the trip likely presented him with adjustment hurdles as his primary carer was born and lived in China until about 2003.
These passages make it clear the Federal Magistrate considered the obtaining of a family report and rejected it for the reasons she gave. We agree with her in this regard.
Reasons of the Federal Magistrate
In the circumstances of this case, it is not necessary for us to consider at any length the reasons of the Federal Magistrate. Consideration of what she did say reveals, among other things, that her Honour at [39] to [42] of her Reasons for Judgment correctly identified the relevant legal principles. The Federal Magistrate dealt with at [44] to [103] of her Reasons for Judgment the relevant statutory considerations in s 60CC of the Family Law Act 1975 (Cth) and made findings in relation to a number of matters.
We observe that her Honour dealt with what at [105] to [109] of her Reasons for Judgment she described as the “Bona fides of application” and said at [106]:
I found the mother to be a witness of credit. She advanced cogent reasons for travelling overseas and taking [R] with her.
We also observe that at [112] to [116] of her Reasons for Judgment her Honour dealt with what she described as the “Degree of satisfaction of assessment of parties and promise to return/degrees of risk” and said at [112]:
There is no evidence to suggest that the mother is not committed to making Australia her permanent home. She has established a life for herself in a new country and after the end of her marriage, re-established a new life for herself as a single parent.
The trial Judge concluded her reasons:
128.Taking into account all of the matters I am required to do to inform my discretion, having considered the evidence before me and having made an assessment of the parties notwithstanding the high ongoing conflict between the parents and whilst I accept that there is a risk in the mother taking [R] to China and not returning, it is a manageable risk, in my view, and not a significant risk.
129.Further, whilst the sum of $5,000 is not a significant sum of money the father failed to adduce evidence to assist me in this regard and I must and do take into account the mother’s financial circumstances and find that it will provide some incentive for her return which, when coupled with a real, not merely theoretical risk to her losing the primary care of [R] should she not return, provides overall insufficient incentive for the mother’s return.
130.I accordingly permit the mother the opportunity to travel with [R] to China in 2010 and make consequential orders to achieve that outcome.
131.For the reasons I have earlier identified I also propose to make orders that the mother be permit [sic] to travel to China on one further occasion each year on the giving of notice to the father and security.
Conclusion
We can find no fault in how the Federal Magistrate approached this matter. Whilst exploring the issues with the parties on 25 September 2009 she identified the risk of the mother not returning to Australia:
HER HONOUR: … So what you’re saying is that because of your concerns in relation to whether the mother is going to return or not and that’s the risk that I’ve got to assess …
MR HORTON: Yes, your Honour.
She then dealt with it in her reasons for judgment.
The Federal Magistrate weighed up the possibility of the mother not returning to Australia after a period in China with the evidence that did support such return (Reasons for judgment, [112] to [118]). She concluded that any risk that did exist could be managed by orders for a security bond to be provided and with the restriction of any visits to China to short duration (Reasons for judgment, [128] to [129]).
We are not persuaded the Federal Magistrate erred in making the decision she did on the basis of the evidence before her.
It is therefore our conclusion there is no substance in the grounds of appeal advanced by the father. The appeal will be dismissed.
I certify that the preceding sixty five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 8 March 2010
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