HUNT & PLANEY
[2013] FamCAFC 160
•9 October 2013
FAMILY COURT OF AUSTRALIA
| HUNT & PLANEY | [2013] FamCAFC 160 |
| FAMILY LAW – APPEAL – CHILDREN – RELOCATION – where the appellant father appeals orders allowing the respondent mother to relocate to the United States with the parties’ young daughter – where the appellant contends that the decision of the trial judge was plainly wrong – where the matter was finely balanced – whether the decision was plainly wrong – where the decision was open on the factual findings made by the trial judge, which were not challenged on appeal – where no error demonstrated – appellant ordered to pay the respondent’s costs. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Risk v Northern Territory (2006) FCA 404 |
| APPELLANT: | Mr Hunt |
| RESPONDENT: | Ms Planey |
| FILE NUMBER: | SYC | 4416 | of | 2010 |
| APPEAL NUMBER: | EA | 87 | of | 2013 |
| DATE DELIVERED:: | 9 October 2013 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace, Murphy & Le Poer Trench JJ |
| HEARING DATE: | 4 September 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 June 2013 |
| LOWER COURT MNC: | [2013] FamCA 442 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Batey with Mr Schonell |
| SOLICITOR FOR THE APPELLANT: | Goldrick Farrell Mullan Solicitors |
| COUNSEL FOR THE RESPONDENT: | Mr Lloyd SC |
| SOLICITOR FOR THE RESPONDENT: | Newnhams Solicitors |
Orders
Appeal EA 87 of 2013 against the Orders made by Johnston J on 13 June 2013 is dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal in an amount agreed in writing between the parties or, failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hunt & Planey has been approved by the Chief Justice 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 87 of 2013
File Number: SYC 4416 of 2010
| Mr Hunt |
Appellant
And
| Ms Planey |
Respondent
REASONS FOR JUDGMENT
The relevant effect of parenting orders made by Johnston J on 13 June 2013 is that L (born March 2009) ("the child”) will live with her mother in the United States. The child’s father lives and works in Sydney where the child and the mother have also lived for about the last three years. The father appeals Johnston J’s orders.
The first of two grounds of appeal challenging the parenting orders refers to what are called “material findings of fact” made by the trial judge and to what are called “material findings of fact not made, or able to be made”. By reference to those matters it is contended that his Honour’s decision was “plainly wrong”; that is, it is contended that the decision is “no proper exercise of his judicial discretion” (Gronow v Gronow (1979) 144 CLR 513 at 519).
The second of the two parenting grounds asserts a failure on the trial judge’s part to provide a “process of reasoning which led to [the] conclusion” just described. It is accepted by counsel for the father that the arguments in support of this ground are, in effect, inextricably related to Ground 1. It is conceded that if Ground 1 fails, Ground 2 must also fail.
The remaining ground of appeal challenges a specific part of the order for settlement of property made by the trial judge. It was ultimately agreed by the parties that the appeal in respect of that part of the order for settlement of property ought be allowed and that a variation to those orders made by consent as a consequence. A minute of an agreed order was received and an order has been made by consent in those terms.
What Was the Context For the Decision about the Child’s Best Interests?
The parenting dispute between the parties arises after a short relationship. The parties commenced cohabitation in June 2008 in the United States. They married in that country in October 2008 and separated in Australia on 5 July 2010.
The parties had previously been acquainted in the United States whilst studying at the same institution. They returned to Australia a few weeks after their marriage, in November 2008. They separated some 19 months after the mother commenced living in Australia, when the child was about 15 months old. The mother had visited the United States for about three weeks during the American summer in 2009 to visit family and friends and to introduce the child to them.
It is uncontroversial that the mother consulted a general practitioner in early 2010 in respect of what might broadly be called depression. The doctor referred her to a clinical psychologist. It is also uncontroversial that the mother was depressed and concerned about the state of the marriage when she visited the United States for a month in May 2010. As can be seen, the parties separated a month or so after the child and the mother returned to Australia after that visit. The parties have been involved in litigation since shortly thereafter.
It is accepted, properly, by counsel for the father that his Honour was confronted with a “finely balanced case”. The exquisitely difficult decision confronting a trial judge where an international relocation of a child is proposed by a parent is, as here, made all the more difficult when there is unchallenged evidence that a young child enjoys a close and loving relationship with each of her parents. The acute difficulty of the decision confronting his Honour can be appreciated by reference to a number of findings made by the trial judge directly relevant to the child’s best interests, which are not the subject of any challenge on this appeal but which, taken together, are important to its determination:
·The child has a close, loving relationship with each of her parents. She is attached to both of her parents. The mother is the child’s primary caregiver and as a result “would be on top of the child’s attachment hierarchy”. The child would be very threatened by any perceptions that she had to the effect that she could lose her mother.
·The child has a close and positive relationship with her father. She has obtained security and comfort from her father and his family and is “obviously attached to him”. She has an established relationship with each of her paternal grandparents and with the husband’s brother (her uncle). His Honour accepted expert evidence that the child had an attachment to each of them.
·Each of the parents would support a relationship between the child and the other parent. It was conceded by the father that the child would live primarily with her mother. In the event that the ultimate result of the proceedings was that the child would live geographically close to her father, each party proposed regular and gradually increasing time between the child and her father.
·Expert evidence was accepted that, if the child was to live in the United States, it would be problematic for the child to “leave her beloved father behind and she would experience loss and grief”. The child’s meaningful relationship with her father would be diluted and her security of attachment to him, which depended upon regular interactions, would be weakened if that relocation was to occur. However, if the father “…remained in contact appropriately, the child would probably not be as distressed as she would be if she ‘lost’ her mother because she would still have her most significant attachment figure attending to her”.
·His Honour also accepted expert evidence that if the child “…was not living primarily with her mother, it would place her sense of security at risk … she would have an experience of loss and abandonment at a very vulnerable age … [S]he might believe that her mother did not love or want her and become anxious that her father would take similar action, leading to an expectation that others were not to be trusted to stay available to her.”
Those findings were predominantly, if not entirely, based upon his Honour accepting, and placing very significant weight upon, the evidence of a single expert, Dr R, who is a psychiatrist. Dr R’s expertise is not challenged on this appeal and nor was it challenged at trial. No challenge is made to the significant weight attached to the doctor’s evidence. No finding referable to Dr R’s evidence (or, indeed, any finding) is the subject of specific challenge.
At trial, the father objected to the receipt of evidence in the form of a report from Dr F who is a psychiatrist whom the mother had consulted twice. The trial judge ruled against the father’s objection. His Honour’s admission of that evidence is not the subject of any ground of appeal. Dr F was not required for cross-examination. Accordingly, his evidence was, in that sense, unchallenged.
The mother’s mental health and the asserted ramifications that it had or may have upon the living arrangements that were in the child’s best interests were a central – indeed, it might be said, the central – issue in the trial.
What Reasons Informed the Orders?
The central issue broadly just described as relevant to this appeal can be seen addressed in a number of passages of his Honour’s Reasons:
150.In my view, the reality for [the child] is that if her mother is not permitted to relocate her residence to the US, [the child] will be living in Sydney in the primary care of a mother who is suffering from a very serious mental health condition, namely the co-morbid disorder of major depression and anxiety in an aroused state.
151.It is clear that [the child’s] mother has been unable to accept that her life is with [the child] in Australia. She has not committed herself to this, in fact she is desperate not to have to continue her life in Australia. She has not committed herself to putting down roots here by developing a network of friends and preparing herself emotionally and psychologically for employment in Australia within her field of expertise. The consequences have been to [the child’s] significant disadvantage. [The child] is living in the primary care of a parent who is unable to function fully as a parent.
…
154.The most troubling of all concerns is that Dr [R] has expressed the opinion that unless the major stressor in the wife’s life is removed, her serious depression and anxiety will not improve and could worsen. The major stressor of course is the fact that the wife is desperate not to live in Australia but to return with [the child] to reside in the US where she believes life for her and [the child] will be infinitely better than in Australia.
…
156.Dr [R] said that the child’s wellbeing and prospects for development are compromised in the present circumstances by her mother’s compromised parenting. If the wife’s health deteriorated as described by both Doctors [R] and [F], this could leave the child with her primary parent no longer being available as a parent for her. Although the child has a close and developing relationship with her father it would be difficult to imagine that their relationship could be sufficient to substitute for the huge loss of her relationship with her mother.
His Honour concluded:
165.I accept the opinion of the experts that the wife’s mental health is likely to improve by moving to the US, and that it is unlikely to improve, and that there is a risk that it will deteriorate, if she is required to remain in Australia.
166.In determining whether the proposed move would be in the best interests of the child, the Court must also take account of its likely effect on the child’s relationship with her father and other significant adults. There can be no question that the child would have a much more intimate relationship with her father if she was to remain resident in Australia and that he would more readily be able to make a significant contribution to her life if she was resident here. Their relationship would be more meaningful if it continued in Australia. In my view, however, the likely cost of this in terms of the child’s developmental prospects, is too high when one weighs against this the greater likelihood of having a mother in good health in the US with all the implications of that in terms of the child’s upbringing and development.
How and Why is the Decision Said to be “Plainly Wrong”?
Paragraphs 12 and 13 of the written outline of argument filed on behalf of the father contend as follows:
12.A balanced reading of the trial judge’s reasons leaves little room for doubting that the “balance was tipped” in favour of permitting the Respondent to relocate the child’s residence to the US by the trial judge’s acceptance that doing so would be better for the child than not doing so, on the basis that only relocating to the US would ameliorate the deficiencies in the Respondent’s parenting capacity which the expert evidence established. As was open to him, the trial judge embraced the Respondent’s wish to relocate the child’s residence on the basis that it was “the less noxious alternative” as Dr [R] had described it, rather than “the best circumstances for the child to grow in”.
13.It is submitted that, pivotal to the trial judge’s conclusion was acceptance that the Respondent believed that her mental health would only improve if she were permitted to relocate the child’s residence to the US, and that, on the balance of probabilities, that would be the case. The former proposition is not controversial in the appeal, and is submitted to be irrelevant in any event. The Appellant contends that the trial judge could not permissibly have found on the balance of probabilities that the Respondent’s mental health would only improve is she were permitted to relocate the child’s residence to the US. The trial judge’s affirmative findings, as outlined above, and absence of findings in relation to the matters referred to below are submitted to have precluded his Honour from so finding. The crux of the Appellant’s submission is that, other than the Respondent’s beliefs, and expert opinion evidence based upon the beliefs being well founded (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705), the highest finding open to his Honour was that things “might” eventuate in the way, and for the reasons the Respondent hoped they would if she were permitted to relocate the child’s residence to the US.
(References to Reasons omitted).
The “affirmative findings” there referred to can be seen to be encapsulated in the uncontroversial findings earlier referred to. In short, there is no doubt that the child has an entirely positive, loving relationship with her father (and his broader family) from which she derives great benefit. Equally, it was uncontroversial that a significant truncation of that relationship caused by the exigencies of significant geographical separation would cause the child significant grief.
The context in which error is asserted on this appeal can be seen by reference to the particulars in Ground 1 of the appeal:
1. The trial judge’s conclusion that the best interests of the parties’ child [L] would be served by permitting the Respondent mother to relocate the child’s residence to the United States of America was not reasonable by reason of material findings of fact made, and material findings of fact not made, or reasonably able to be made, by his Honour as particularised below.
Material findings of fact made by the trial judge:
a.that the child’s attachment to the Appellant father and his family was observed by Dr [R], an appropriately qualified expert witness at trial, to be “positive”, whilst that of the child to the mother was observed by Dr [R] to have deteriorated, and become a “possibly anxious attachment”.
b.that the child could only retain a satisfactory relationship with the Appellant father, and avoid “seriously limit(ing)” the development of such relationship if the Respondent mother continued to reside within the jurisdiction of the court, and;
c.that, as the evidence of Dr [F], an appropriately qualified expert witness at trial, suggested, the Respondent mother’s “prognosis was very poor while lack of adequate finances, social isolation, lack of support and being unable to return to the US with [the child] continued”;
d.that the Respondent mother had not sought “appropriate treatment for her mood disorder including consideration of long term, psychodynamic psychotherapy” as recommended by Dr [R];
e.that the child’s well being and “prospects for development” were “compromised in the present circumstances by her mother’s compromised parenting” as observed by Dr [R].
Material findings of fact not made, or able to be made by the trial judge:
a.that any regime of psychotherapy and/or medication would be able to assist the Respondent mother “quickly enough, and sufficiently, to enable” her to “recover quickly enough to assist [the child] in the sense of being a happy parent who is functioning well enough in the adult world”;
b.that the Respondent mother’s beliefs with respect to her psychological health, financial security, social support, living arrangements and proposals for the child’s education and care were she permitted to relocate the child’s residence to the US were not established by the evidence on the balance of probabilities;
c.that the Respondent mother’s belief that “life for her and [the child] will be infinitely better than in Australia” if she were permitted to relocate the child’s residence to the US was not established by the evidence on the balance of probabilities;
d.that, on the balance of probabilities, permitting the Respondent mother to relocate the child’s residence to the US would “cause the (mother’s) mental health to improve”;
e.that, on the balance of probabilities, the respondent mother’s genuine belief that her relocation to the US would result in her returning to “stability and high achievement” was likely to be realised;
f.that, on the balance of probabilities, the Respondent mother would have the capacity to facilitate the Appellant father spending the time with the child in Australia which the trial judge’s orders contemplated.
In oral argument, Mr Batey, counsel for the father put the argument this way:
…his Honour had to find that the loss of that uncontested functional parent would, in all probability, nevertheless serve [the child] better by having perhaps a functional mother in the United States. If … his Honour had not found that the father was a very functional parent, and that his relationship with the child was under threat if the child moved to America, then perhaps his Honour could have made that finding. But, in my respectful submission … we have to weigh [the benefits of relocation] against the disadvantages…
The disadvantages referred to are, in essence, the effective loss of a relationship with her father and the grief and sense of loss the child would experience as a result.
Expressed in another way, counsel contended that “every advantage of the child remaining in Australia was uncontroversial” before his Honour and that if these manifest advantages for the child were to be overcome, there ought be a firm evidentiary foundation for arriving at that ultimate finding. Here, it is argued that there was not because the alternative was premised upon opinions as to what might occur positively to the mother’s mental health and what might be the positive consequences for the mother’s parenting of the child.
Is the Decision Plainly Wrong?
Counsel for the father recognises the principal challenge facing the father on this appeal: it is not sufficient that any or all of us would have reached a decision different to that of the trial judge. The essential requirement has been expressed in differing ways to the same effect (for example: a result that is “plainly unjust”, House v The King (1936) 55 CLR 499 at 505; a “court must be well satisfied that the primary judge was wrong…”, Gronow at 519; or, “plainly wrong”, CDJ v VAJ (1998) 197 CLR 172 at 230).
As Kirby J said in CDJ at 231 “…[t]he reference to ‘plainly wrong’ is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.” His Honour went further in emphasising the “particular relevance” which that principle has to appeals within this jurisdiction because of “[t]he peculiar nature of decisions relating to the intensely personal questions of … the welfare of [parties’] children ... it is of the very nature of such decisions … that any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions.”
It follows that a court’s decision about parenting orders involving two loving parents plainly concerned as to their child’s welfare and to whom their child is clearly attached, are often, as here, finely balanced and that the articulation of why one parent’s case is preferred over another is more difficult than when a result depends upon findings as to a number of relevant forensic issues (see, for example, Kirby J in CDJ at 236-237).
The Psychiatric Evidence and its Effect
As can be seen, paragraph 13 of the father’s written outline of submissions makes reference to Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 in contending that “the highest finding open to his Honour was that things ‘might’ eventuate in the way, and for the reasons, the Respondent hoped they would if she were permitted to relocate the child’s residence to the US.” Section 69ZT(1)(c) of the Family Law Act 1975 (Cth) (“the Act”) excludes, in parenting cases, the operation of the opinion rule and the exceptions to that rule contained in, respectively, sections 76 and 79 of the Evidence Act 1995 (Cth). No application was made, as it might have been, pursuant to s 69ZT(3), to have the opinion rule apply.
In apparent implicit recognition of this, and in recognition of the fact that Dr F’s evidence is unchallenged in the sense earlier described, the father’s argument is more subtle than asserting simply that his Honour erred in according the doctors’ opinions significant weight.
Rather, the argument suggests that the respective opinions of the doctors are based almost entirely on the mother’s recitation of her perceptions and her assertions that relocation to United States would alleviate her distress and unhappiness with consequential benefits for the child. As a result, it is said the opinions are speculative because the foundation for them is speculative. The contention proceeds that while his Honour was entitled to give the opinions weight, and indeed significant weight, that had to be compared to the unchallenged opinions based on observation and assessment of the advantages for the child in having regular and increasing time with her father and the disadvantages of not doing so.
That argument is supported by the contention that both doctors had diagnosed the mother with “reactive depression” and both had indicated that the mother’s current situation was but one of the causes of that depression; that is, relocation to the United States would – at best – address but one of the causal factors related to the mother’s depression.
The careful arguments made by counsel for the father do not persuade us that his Honour was plainly wrong. In our view, the father’s arguments pay insufficient regard to the whole of the evidence before his Honour from which it was open to his Honour to make the order that he did.
His Honour had before him clear evidence from the mother – which crucially, it should be emphasised, his Honour accepted – as to her state of mind, her level of unhappiness in Australia, and her projected level of happiness in the United States. We disagree that the decision made by his Honour was dependent wholly or significantly upon a finding as to an idealised, or “overly optimistic” perception by the mother of her potential life and that of the child in the United States.
First, we are satisfied that his Honour’s findings were based on a consideration of the whole of the circumstances affecting the mother and his Honour’s acceptance of evidence that can be seen to have properly led to the conclusion which his Honour reached. Examples of findings made in that respect include:
· In June 2011 a clinical psychologist diagnosed the mother with an adjustment disorder with depression and traumatic stress.
· The mother feels isolated and lonely in Australia.
· The mother has low self-esteem.
· The mother has established few friendships in Australia.
· The mother has family and friends in the United States.
· The mother has, at times, been unable to prevent the child from observing her distress.
· The mother has been unable to obtain employment in Australia.
Crucially, the evidence of the psychiatrist Dr F, which, again, we observe was unchallenged by cross-examination, included the following (contained in a report prepared by the doctor dated 9 July 2012):
[The mother’s] symptoms are the consequence of her circumstances and therefore only likely to have a limited response to medication ….
2. If the diagnosis is a mental disorder than the cause of such mental [disorder]
The condition of Major Depression of a non-melancholic type is solely attributable to [the mother’s] current situation which is directly attributable [to] the breakdown of her marriage and living in Australia only since 2008 where she feels socially isolated and has been unable to form friendships or social networks.
…
4. Prognosis
[The mother’s] prognosis is very poor whilst the current circumstances, lack of adequate finances, social isolation, lack of support and being unable to return to the United States with her daughter continues.
5. What action is required, if any, for treatment and recovery
[The mother’s] best chance of recovery is to be able to return to the United States with her daughter where she has access to friends, the potential for employment and which is culturally familiar.
6. If there is no recovery, then what is the short and longterm [sic] effect?
If there is no recovery [the mother’s] current mental state will continue into the future. It may deteriorate with the passage of time as she is likely to feel more hopeless and overwhelmed, if her situation does not improve.
…
8. In the event that [the mother] does not recover from her condition, then could it worsen and if so to what extent?
…If the current circumstances continue, where [the mother] is required to remain in Australia, to have access to her daughter, it is likely that he condition will deteriorate in the future. It is likely that she will continue to feel increasingly hopeless. This could reach the extent of her becoming suicidal and requiring hospitalisation.
…
9. To what extent is [the mother’s] functioning impaired by any other condition?
…[The mother] has worked in a variety of jobs, and has been able to make friends and functioned in the social environment in the country of her birth. I therefore believe that she does not have a pre-existing psychiatric or psychological condition.
…
11. Would relocation to [the United States] and the support network benefit her mental condition and/or her capacity for employment?
Yes.
[The mother has] support and network contacts that she has through graduates of [a business school which she attended in the United States]. The United States is culturally familiar, whereas [the mother] finds Australia culturally alien. She has unsuccessfully tried her usual strategies for making friends and forming social networks.
She would also have better access to childcare both formal and informal which would make it easier for her to return to work…
His Honour was alive to the possibility that the mother’s perception of life in United States may well be “idealised” or overly optimistic and his Honour also addressed the argument by the father at trial similar to that advanced in this court, summarising the earlier at [161] of the Reasons: “…if the [mother’s] health was not to improve significantly in the US then such a move would simply visit upon the child a limited relationship with her father and a continuing limited situation so far as her mother’s functioning as the child’s primary parent was concerned.”
In response to that, his Honour said:
162.In my view, with respect, this is a somewhat confined view of the relevant evidence. Both Doctors [R] and [F] said that the major source of the wife’s depression was the fact that she is required to live with [the child] in Australia against her very strong wish not to do so. Dr [F] described her depression as “solely attributable to [her] current situation which is directly attributable to the breakdown of her marriage and living in Australia … where she feels socially isolated and has been unable to form friendships or social networks.”.
As is suggested by the extract from the report of Dr F outlined above, that view of the evidence, which plainly formed an important component of his Honour’s ultimate decision, was open to him. There is merit in the contention that the reports of Dr F and Dr R show a significant reliance upon “self-reporting” and, indeed “predictions” of future happiness, by the mother. However, the statements by the mother do not sit in a vacuum. They are the grist to which expertise is applied in making assessments and ultimately formulating opinions. The mother’s statements are accompanied by the force, rapidity and affect with which they are delivered – all matters, as the reports make clear, that are the stuff of psychiatric observation and which are also components of the assessments and opinions ultimately reached.
Importantly for present purposes, the opinions of the doctors derive force from the fact that, in very large part, his Honour accepted the evidence of the mother as to her own perceptions of her unhappiness in Australia and potential happiness in the United States and accepted her own recounting of the anxiety levels felt by her. As was said, in a different context to the present, by Mansfield J in Risk v Northern Territory (2006) FCA 404 at [467]-[468]:
…there are “great practical differences” between experts reports from different disciplines…
…science and mathematics are exact disciplines, whereas the disciplines of anthropology, humanity, much of economics, and history are not. There is a longer list which could be created. In most if not all disciplines, opinion is formed by reasoning drawn from a group of “facts”. The facts may be drawn from a scientific experiment, historical documents or a series of conversations held with members of the native title claimant group. However, “facts” themselves have varying degrees of primacy or subjectiveness. Some facts are now, in reality (and despite the deconstructionists) incontrovertible. Our communication systems make them so: the use of numbers in measurement is a clear example. Some are obviously more subjectively perceived: estimates, descriptions of persons or events, and the like ... Some are complex and themselves involve judgement. In the realm of expert evidence, the primary data upon which an opinion is based may comprise a mixture of primary and more complex facts. The opinion may then be further based on interpretation (sometimes requiring expertise) of those facts and that stage may require an exercise of judgment, sometimes fine judgment, by the person concerned.
The opinions expressed by each of Doctors R and F – which were entirely open to the trial judge to accept – fall into that category. The opinions do not purport to be based upon empirical data (such as, for example, psychometric testing) but, rather, are opinions based on matters “involving judgment” and further based on interpretation which “require[s] an exercise of judgment” and, it might be said, expertise on the part of the person concerned.
Conclusion
Nothing to which we have been taken on behalf of the father nor the arguments otherwise ably advanced by his counsel persuade us of error.
Any or all of us may have heard the trial and arrived at a conclusion different to his Honour. However, the conclusion reached by the trial judge in this finely balanced case was open to him. We are not persuaded that it was “plainly wrong”.
Ground 1 fails.
As a consequence, it is conceded that Ground 2 also fails.
Costs
In the event that the appeal failed counsel for the father conceded that the father should pay the mother’s costs of and incidental to the appeal.
The justifying circumstance (s 117(2)) relied upon is that the appeal has been wholly unsuccessful and that it enjoyed little merit from the outset. By reference to s 117(2A) we are not satisfied that the father’s financial circumstances, nor any other factor referred to in s 117(2A), renders any order for costs just other than that the father ought meet the mother’s costs and we will so order.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Murphy and Le Poer Trench JJ) delivered on 9 October 2013.
Associate:
Date:9 October 2013
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