Irvin & Carr
[2007] FamCA 492
•29 May 2007
FAMILY COURT OF AUSTRALIA
| IRVIN & CARR | [2007] FamCA 492 |
| FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CONTRAVENTION OF PARENTING ORDERS – Orders in place that the child live with the mother and have weekly contact with the father with changeovers to take place on the Sunshine Coast; and that the parties refrain from making derogatory comments about each other in the presence of the child – The father alleged that the mother had committed eight contraventions of these orders – Jarrett FM found five contraventions proved, four counts having been admitted by the mother’s solicitor on her behalf – Jarrett FM ordered that the mother enter into a bond by way of sanction and varied the parenting orders with the ultimate effect that the child lived with the father and had weekly contact with the mother – The mother appealed these orders on the grounds that she had been denied procedural fairness at the contravention proceedings and that the varied parenting orders had not been sought by either party at those proceedings – Appeal dismissed on both grounds – Mother also appealed against an order that she pay the father’s costs of and incidental to the contravention application – No merit in this appeal. FAMILY LAW - APPLICATION TO ADDUCE FURTHER EVIDENCE - Mother sought to adduce further evidence in support of the appeals – Court not satisfied this was appropriate having regard to the principles in CDJ v VAJ – Application dismissed. FAMILY LAW - COSTS – Order that the mother pay the father’s costs with respect to the appeal – Order that the mother pay the father’s costs of an earlier hearing of the appeal that was not able to proceed. |
Family Law Act 1975 (Cth)
Sandler & Kerrington [2007] FamCA 479
CDJ v VAJ (1998) 197 CLR 172
| APPELLANT: | Ms Irvin |
| RESPONDENT: | Mr Carr |
| FILE NUMBER: | BRM 7450 of 2005 |
| FIRST APPEAL NUMBER: | NA 74 of 2006 |
| SECOND APPEAL NUMBER: | NA 91 of 2006 |
| DATE DELIVERED: | 29 May 2007 |
| PLACE DELIVERED: | Canberra |
| JUDGMENT OF: | Finn, Warnick & Boland JJ |
| HEARING DATE: | 14 May 2007 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 June 2006 29 September 2006 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Vickers (solicitor) |
| SOLICITOR FOR THE APPELLANT: | Hungerford Lehmann & Andrews |
| COUNSEL FOR THE RESPONDENT: | Mr Coulsen |
| SOLICITOR FOR THE RESPONDENT: | SJB Law |
Orders
That the appeal against Order 5 of the orders made on 28 June 2006 be dismissed.
That the appeal against the orders of 29 September 2006 be dismissed.
That the mother’s application to adduce further evidence be dismissed.
That the mother pay the father’s costs of and incidental to both appeals (including the reserved costs of the hearing of the appeals by the Full Court on 1 March 2007 which was not able to proceed) with such costs to be assessed in default of agreement.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Irvin and Carr.
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
Appeal Numbers: NA 74 of 2006; NA 91 of 2006
File Number: BRM 7450 of 2005
| Ms Irvin |
Appellant
And
| Mr Carr |
Respondent
REASONS FOR JUDGMENT
Introduction and background
On 28 June 2006 Jarrett FM heard proceedings between the parents of A, who had been born on 6 July 2003, concerning her future living arrangements. Since her parents separated in May 2004, A had lived with her mother, but had had contact with her father.
At the time of the hearing before his Honour, the mother and the child were residing on the Queensland Sunshine Coast (where the father was also residing) as the result of an order made by Jarrett FM on 23 February 2006 requiring the mother and child to return there after they had been in Victoria for some months.
Before his Honour, the father sought a shared care arrangement whereby A would reside on the Sunshine Coast and spend time with each parent. Alternatively, the father sought that if the mother resided in Northern New South Wales, A should reside with him and have contact with the mother not less than from Thursday evening until Monday morning in each alternate week, half of all school holidays, and telephone contact.
The mother sought orders that A reside with her and that she be permitted to reside in the Northern New South Wales area with A having contact with her father each alternate weekend from 3.30pm Friday to 9.00am Monday, and for the first half of all school holiday periods other than the Christmas holidays (in relation to which certain specific orders were sought).
Under cross-examination the mother conceded that she could (albeit reluctantly) stay on the Sunshine Coast with the child residing with her and having contact with the father.
His Honour delivered ex-tempore reasons for judgment on the day of the hearing (28 June 2006), in which he concluded:
55. Having regard to all of the matters that I have referred to, I am of the view that [A] should remain living with her mother most of the time. I think the positives arising from that – the continuation of care by her primary carer – outweigh the negatives, notwithstanding the long term matters that [counsel for the father] so carefully pointed to in the course of submissions.
56. What is critical in this case, given [A]'s stage of development, is that she has frequent contact with both of her parents. [The social worker who compiled the Family Report] said as much in the witness box. Weekly contact was his evidence. I intend to order weekly contact. Weekly contact will necessarily mean that the mother's residential options are limited. I am not going to make an order that permits her to live in northern New South Wales, whatever that might mean. I am going to pronounce an order that provides for there to be frequent and regular contact between [A] and her father. Where the mother lives is a matter entirely for her, but the orders must be complied with and must be complied with not only to the letter but in spirit and there ought not be any unnecessary imposition on the child by reason of onerous travel so as to make the orders work.
57. The preferable course is for the mother to reside on the Sunshine Coast, but the orders that I am about to pronounce would work if she lived near the Sunshine Coast as well. …
His Honour’s orders then provided for the child to live with the mother but to have contact with the father from 3.30pm Thursday until 9.00am Monday each alternate weekend, and in each week preceding a non contact weekend from 3.30pm Thursday to 9.00am Friday and for half school holidays (Orders 4(a) to (d)).
In addition and relevantly for present purposes, there was an order for changeovers for contact to take place at a Sunshine Coast contact centre (Order 5) and there was a restraint on each party “from making derogatory comments about the other to the child or in the presence of the child…” (Order 6).
Notwithstanding his Honour’s orders of 28 June 2006, the mother moved with the child to Byron Bay at some time prior to September 2006.
On 22 September 2006 the father, apparently acting on his own behalf, filed an application seeking that the mother be dealt with for eight alleged contraventions of the orders of 28 June 2006.
That contravention application was heard by Jarrett FM on 29 September 2006. At that hearing the father was represented by Mr Theobald of Counsel and the mother by a solicitor, Mr Hunter.
In the event his Honour found five of the alleged contraventions proved, of which four (being counts 2, 3, 4 and 5) had been admitted by Mr Hunter on the mother’s behalf.
By way of sanction his Honour ordered pursuant to s 70NFE of the Family Law Act 1975 (“the Act”) that the mother enter into a bond.
In addition, his Honour ordered pursuant to s 70NBA of the Act that the orders which he had made on 28 June 2006 be varied to provide for the child to live week about with each parent until 11 November 2006 when the orders of 28 June 2006 would re-commence operation provided the mother had returned to the Sunshine Coast area; however if the mother had not returned to that area, the child was to live with the father, but with broadly the same arrangements for contact with the mother as had pertained for contact with the father under the orders of 28 June 2006 (although the Thursday afternoon to Friday morning contact in each alternate week had to be exercised on the Sunshine Coast).
The mother was also ordered to pay the father’s costs of the contravention application fixed at $825.00.
As we understand it, the mother did not return to live on the Sunshine Coast, and therefore since on or about 11 November 2006, the child has resided with the father on the Sunshine Coast but has had weekly contact with the mother.
The mother’s appeals
On 28 August 2006 the father consented to an extension of time for the mother to file an appeal against the orders of 28 June 2006.
On 18 September 2006 the mother, apparently acting on her own behalf filed a notice of appeal directed to Orders 4(a) to (d) (the orders for weekly contact) and Order 5 (the order for contact changeover on the Sunshine Coast) of the orders of 28 June 2006.
On 6 December 2006 an amended notice of appeal was filed on behalf of the mother by a firm of solicitors. This amended notice of appeal was directed to those orders made on 29 September which imposed a bond on the mother (Order 3) and which varied the residence and contact arrangements for the child (Order 5), as well as the costs order (Order 6).
On 30 April 2007 a further amended notice of appeal was filed on the mother’s behalf by a solicitor, Mr Vickers, who subsequently appeared for her at the hearing of the appeal. The further amended notice of appeal was directed to Orders 4(a) to (d) and Order 5 of the orders of 28 June 2006 (that is, the same orders to which the mother’s first notice of appeal was directed) and also to the orders of 29 September 2006 (although whether all orders of 29 September 2006 were appealed was not specified in the further amended notice of appeal).
However at the hearing of the appeal on 14 May 2007, it emerged that the mother’s principal challenge was to those orders made on 29 September 2006 which required her to enter into a bond, which varied the residence and contact orders made on 28 June 2006, and which required her to contribute to the father’s costs of the contravention proceedings. So far as the orders of 28 June 2006 were concerned the mother ultimately only challenged Order 5 which provided for contact changeovers to be on the Sunshine Coast.
The grounds of appeal which the mother relied on were as follows:
1. In light of the findings of fact made by the Federal Magistrates Court on 28 June 2006 (which formed the foundation of the Order of 28 June 2006), the Order of 29 September 2006 that there be a change of the child’s living arrangements in the event that the Mother not live within 75 kilometres of Kawana Post Office was contrary to such findings of fact and thus amounted to an error of law. [This ground was Ground 1 of the Amended Notice of Appeal signed 5 December 2006].
2. That the Court erred in law in not affording the Appellant procedural fairness in relation to the allegations of contravention and in determining against the Appellant in relation to those findings.
3. That the Court erred in law in failing to consider the evidence of reasonable excuse in respect of the contraventions found against the Appellant and in respect of the finding of making a derogatory comment the Court found against the Appellant wherein the Father had not discharged the onus of proof in respect of the alleged contravention.
4. That the Court erred in law in making orders for the living arrangements of the child that were not within the pleadings filed by the parties to the proceedings as to their respective proposals for the living arrangements for the child.
5. That the Court’s determination that the primary residential arrangements for the child be reversed were based at least in part on findings it made against the Appellant in relation to the contravention proceedings.
6. That the Court’s findings in relation to the evidence led by the Appellant Mother as to her being the primary care giver were not taken into account in determining the best interests of the child.
7. That the Court took into account irrelevant considerations including the place of the Appellant Mother’s domicile or residence when making Orders that determined that the child should live with the Respondent Father.
8. That in determining to make an order to change the primary residential arrangements for the child in the event that the Appellant Mother did not reside within a specified distance from the Kawana Post Office the Court erred in law in that it failed to have regard to the best interests of the child as the primary consideration or at all.
9. That in relation to the Orders made 28 June 2006 in relation to the Father spending time and communicating with the child [A] the Court failed to take into account the cost of implementing the orders and the overall impact on the stability of the child or the interest of the child generally.
10. That in all of the circumstances of the contravention proceedings and the facts of the case that the Court erred in law in making a costs order against the Appellant Mother.
As we understood the submissions of Mr Vickers, it was only Ground 9 that was directed to the orders of 28 June 2006 and then only to Order 5 of those orders, that is, the order requiring the contact changeover to be on the Sunshine Coast.
It would be fair to say that the emphasis in Mr Vicker’s submissions in support of the mother’s appeals was:
·first, on the findings of the Federal Magistrate that the mother had contravened the orders of 28 June 2006, with the essential argument being that she had been denied procedural fairness at the hearing on 29 September 2006, and
·secondly, on the orders which varied (and in fact ultimately operated to reverse) the residence and contact orders of 28 June 2006, with it being submitted that such orders had not been sought by either party in their “pleadings” or otherwise.
The hearing of the contravention application
In order to establish whether or not there is substance in these two principal complaints raised on behalf of the mother, it is necessary to consider closely the transcript of the hearing of the contravention application before Jarrett FM on 29 September 2006.
At the commencement of that hearing after Mr Theobald and Mr Hunter had announced their appearances and Mr Theobald had outlined the material which was relied on by the father in support of the contravention application, his Honour inquired of Mr Hunter whether he wanted each of the allegations to be put to the mother seriatim. Mr Hunter replied:
Yes, your Honour, if I could answer each of the allegations on her behalf.
Then as will be seen from the following passage of transcript, his Honour read each of the allegations or counts and Mr Hunter responded on behalf of the mother (transcript pp 21 – 22):
FEDERAL MAGISTRATE: Yes. Well, the first allegation is that:
On 21 September 2006 between 3.30 pm and 3.45 pm in breach of paragraph 4A of the orders made on 28 June 2006 the respondent, without reasonable excuse, refused to provide the child for contact in accordance with the orders.
MR HUNTER: That matter will be defended.
FEDERAL MAGISTRATE: What I need to know is whether it's admitted or denied?
MR HUNTER: It's denied.
FEDERAL MAGISTRATE: It's denied. The second count is that:
On 24 August 2006 at 3.30 pm in breach of paragraph 4A of the orders the respondent, without reasonable excuse, refused to facilitate contact at the time specified in the order so as to allow the child to spend time with the father .
Is that admitted or denied?
MR HUNTER: That is admitted.
FEDERAL MAGISTRATE: That is admitted. The next count:
On 14 September 2006 at 3.30 pm in breach of paragraph 4C of the orders, the respondent, without reasonable excuse, refused to provide contact between the child and the father.
MR HUNTER: That's admitted.
FEDERAL MAGISTRATE: The next count:
31 August 2006 in breach of paragraph 4C of the orders, the respondent, without reasonable excuse, refused to provide the ordered contact to allow the child to spend time with the applicant.
MR HUNTER: That's admitted.
FEDERAL MAGISTRATE: The next count is 3 August 2006:
In breach of paragraph 4C, the respondent, without reasonable excuse, refused to provide contact to allow the child to spend time with the applicant.
MR HUNTER: That's admitted.
FEDERAL MAGISTRATE: The next count is that:
Between 18 August 2006 and 15 September 2006, on the occasions listed below -
So that would be the - I'll just have a look at that. Well, I think that's an allegation that on 1, 6, 12, 13, 14, 15 September and 22 August there was no telephone contact in breach of paragraph 4E of the order. That's what that seems to amount to, although it's not expressed very well.
MR HUNTER: The count is denied on a number of bases.
FEDERAL MAGISTRATE: Is it necessary to proceed with that count at all,
Mr Theobald?
MR THEOBALD: I'll get some instructions.
FEDERAL MAGISTRATE: Well, I'll let you do that in due course. The next
count is 28 August 2006:
In breach of paragraph 5 of the orders, the respondent, without reasonable excuse, failed to comply with the intake procedures of the Maroochydore Contact Centre for the purposes of a changeover.
The final count, I think, is on 2 September 2006:
The respondent, without reasonable excuse, used derogatory language and/or made a derogatory comment in the presence of the child.
MR HUNTER: And it's denied.
Importantly given the matters raised on behalf of the mother at the hearing of the appeals, his Honour then raised the issue of “reasonable excuse” in relation to the admitted breaches (transcript pp 22 – 23):
FEDERAL MAGISTRATE: Now, in relation to the ones that are admitted, Mr Hunter, is your client intending to lead evidence of reasonable excuse?
MR HUNTER: Lead evidence in mitigation.
FEDERAL MAGISTRATE: Well, that's two different things.
MR HUNTER: Well, they're admitted so it's not a reasonable excuse; defence.
FEDERAL MAGISTRATE: Yes.
MR HUNTER: Sorry. We're not just admitting the prima facie, we're admitting the count entirely.
FEDERAL MAGISTRATE: The way the Act operates, as I understand it, is that if you breach the orders you contravene the orders but I can only apply a sanction if I find that the orders have been contravened without reasonable excuse.
MR HUNTER: Yes.
FEDERAL MAGISTRATE: And so- - -
MR HUNTER: So no evidence of reasonable excuse will be brought in respect of the matter which I've admitted.
After a short adjournment to permit Mr Theobald to obtain instructions from the father as to whether all counts which had not been admitted would be pursued, Mr Theobald informed his Honour that only the first and eighth counts would be pursued although it later emerged that the sixth count was also pursued (transcript pp 24 – 25).
Both parties then gave oral evidence and were cross examined (transcript pp 26 – 41), with their legal representatives then making brief oral submissions (transcript p 42).
The reasons of the federal magistrate in relation to the contraventions
His Honour then delivered the first of a number of judgments delivered in the course of the proceedings that day, but all of which were subsequently consolidated into one settled judgment which, as it appears in the Appeal Book, contains paragraphs numbered 2 to 44.
In relation to the first count, which alleged that the mother had without reasonable excuse refused to provide contact on 21 September 2006, his Honour found that given that the relevant orders (Orders 4(a) and (d) of 28 June 2006) were open to at least two reasonable interpretations, he could not be satisfied that she had contravened the orders, or that if she had, she did not have reasonable excuse. Accordingly his Honour dismissed the first count.
His Honour then recorded that counts 2, 3, 4 and 5 were all admitted. He then dismissed count 6 (relating to telephone contact) on the basis that it had not been established, and also count 7 on the basis that it had not been pressed.
Count 8 which alleged that the mother had made a comment derogatory of the father in the presence of the child (albeit over the phone) was found proved.
Having stated at the end of his first judgment that in summary counts 2, 3, 4, 5, and 8 had been proved, his Honour said that he would hear Mr Theobald “on sanction” (transcript, p 42).
The submissions to the federal magistrate in relation to “sanctions”
After some brief introductory remarks, Mr Theobald said (transcript p 43):
… Your Honour, my client seeks an order that the child, [A], reside with him or live with him on a week and week about arrangement until the mother returns to the Sunshine Coast. And if she doesn’t return to the Sunshine Coast within, at the most, six weeks, that the child would live with him and, in effect, the mirror image orders be placed for contact with the mother.
A little later Mr Theobald explained the father’s reasons for seeking such an order:
What my client seeks is that the order, with respect to - when I say a mirror image order, that the overnight Thursday order be exercised on the Sunshine Coast and the weekend orders be exercised where the mother desires to do so because they're from Thursday to Monday, but the changeovers continue to be at the [Sunshine Coast] Contact Centre. Your Honour, that being formulated over some time this morning, is trying to make the best out of what is a very difficult situation. The cure of the situation lies with the mother.
His Honour then called on Mr Hunter, but before Mr Hunter could begin his submissions, Mr Theobald added (transcript p 44):
I suppose I should say, your Honour, with respect to the general sanction, we also seek the mother be placed on a bond to comply with orders in the future.
Mr Hunter then began his submissions on behalf of the mother, referring first to the need for an order for the parties to attend a post separation parenting course. Mr Theobald then indicated that the father would be prepared to attend such a course and his Honour said he would make such an order.
Again importantly for present purposes, Mr Hunter then continued his submissions saying (transcript pp 45 – 46):
But as I understand, my friend's submission is that there be a shared parenting arrangement week about for this child for a period of six weeks. That if the mother is able to relocate - when I say "able to" - able to self motivate herself to do that, to relocate to the Sunshine Coast or its environs within that period then the orders of 28 June would be put back in place and if she's unable or unwilling to do that, then a mirror of those orders be put in place and I can't take issue with that proposal. And in fact I had sought instructions from my client this morning to put that proposal to you and she has given me those instructions.
Now, while - and as I've - because of those comments - your Honour may want to do something else, but if your Honour is proposing to do something else I ask for the opportunity to further address.
His Honour then indicated that he proposed to order that the child live with the father until the mother moved back to the Sunshine Coast, but that he would hear Mr Hunter on that proposal. His Honour’s precise words were (transcript p 45):
Yes, all right. Well, I'm proposing that [A] live with her father until your client moves back. I'm not going to make a shared parenting order. I'm going to order that there be - I'm proposing to order that there be contact as agreed between the parties, failing agreement, to be each weekend from after school Thursday - or 3.30 Thursday to 9 am Monday. I'm not going to make an order on the off week because I don't trust your client not to drive the child between the Sunshine Coast and Byron Bay, so it will be every fortnight. That's what I'm proposing and I'll hear you on it and she can move back within four weeks and she'll have to prove to the father, to his reasonable satisfaction, that she is living bona fide on the Sunshine Coast, in which case the orders of 28 June will be put back in place. That's what I'm thinking of doing and I'll let you tell me about that, why I shouldn't do that.
Mr Hunter then made the following submissions (transcript p 45):
MR HUNTER: Your Honour, I would submit that that may well send a very
strong message to the mother.
FEDERAL MAGISTRATE: That's the intention, Mr Hunter.
MR HUNTER: I'm sure that is the intention and the mother is obviously aware of that. The collateral damage, if you like, is that that will have a very substantial effect upon this three year old girl.
FEDERAL MAGISTRATE: Will it? She has a great relationship with her father. She has a good relationship with her mother. Why will it? And no greater damage than has already been inflicted on her.
MR HUNTER: Your Honour, the child has been in the primary care of the mother for all her life. I think that's common ground between the parties.
FEDERAL MAGISTRATE: Yes.
MR HUNTER: She has been the primary provider for this child. The child has just spent, or will have by the end of this weekend, a week with the father during school holidays.
FEDERAL MAGISTRATE: Yes.
MR HUNTER: That is as long as the child has been absent from either parent for some considerable time.
FEDERAL MAGISTRATE: Yes.
MR HUNTER: And to extend that period of absence from the mother for a further period of a week, two weeks, three weeks, four weeks would, in my submission, adversely impact upon the child. She would be, I would submit, and I can only make this submission based on experience and commonsense, she is likely to feel some distress at that length of separation from her primary carer. She is only three years of age. She doesn't have the capacity to understand what is going on around her. All she knows is that she wouldn't see mum for a long time.
My submission is that my learned friend's proposal is one which meets both the Court's requirement to send a strong message, but also meets the best interests of [A]. In respect to the other matters, I don't propose to - I do propose to -in regard to the contraventions that have been found, in respect of the matters that were admitted I'd ask your Honour to take into account the admissions made at an early stage.
FEDERAL MAGISTRATE: Yes.
MR HUNTER: That she is entitled to a benefit on that basis. That in respect of the various Thursday afternoons that weren't complied with, that some compensatory contact was already provided by the mother, whether the father thought it was compensatory contact or not. I'll also ask you to accept that on the father's own evidence the mother took it on her own whim to make sure the child was made available to him on Father's Day and she should be congratulated on that.
FEDERAL MAGISTRATE: Yes.
MR HUNTER: In respect of the last finding which - you made a finding against my client. We accept the finding. She certainly - I submit it's acknowledged that's the relative sort of words used. She says she understands that word is derogatory and that my instructions are that if the words were uttered, as your Honour has found, they may well have been uttered out of frustration and an inadvertent slip of the lips. But it's not something that she intends to do again and I couldn't argue with the issue of bond.
The reasons of the federal magistrate in relation to “sanctions”
Shortly thereafter his Honour delivered his judgment with regard to “the question of sanction” in relation to the mother’s four admitted contraventions and in relation to the contravention of which he had found her guilty. He commenced by saying:
19. I propose to deal with this matter under sub-division (f) of Div 13A Pt 7 of the Act - that is I intend to deal with it as a serious contravention. I propose to deal with it on that basis because of the nature of the mother's contraventions – deliberate non-compliance with contact orders and because of the way that non-compliance has come about.
His Honour then explained that he proposed to deal with the matter under subdivision (f) because of the mother’s apparent “deliberate misleading of the court” in relation to the fact that she had not disclosed to the court at the hearing on 28 June 2006 that she already owned a home at Byron Bay:
20. The orders breached by the mother were the product of an application where the main issue to be decided was the appropriate parenting orders for [A] having regard to the competing proposals between the parties. The mother proposed an order that she live with [A] in the northern New South Wales region. I went to great pains to point out in my reasons for judgment that the mother's proposal was ill-defined, that there was no form to it or very little form to it and that for that reason it was very difficult to properly consider it. For the reasons that I expressed on 28 June I made the orders that I made on that day.
21. The mother's evidence at trial recorded in my reasons for judgment was that the mother had a relative, and from memory an aunt, who was a real estate agent in Byron Bay who was to attempt to find her accommodation if she was allowed to live with [A] in northern New South Wales. That evidence, however, flies in the face of her evidence today. The mother has moved from the Sunshine Coast to Byron Bay, but concerningly, she says that she has moved to a property that she says is registered in her name and which was purchased in May - well before the trial. I infer from that that the mother had some intention to move to Byron Bay at the time the trial was heard and so notwithstanding the lack of precision in her proposals she had a precise proposal that was not disclosed.
22. Those matters cause me grave concern and cause me to treat this matter under subdivision (f), as I have said. There appears to have been a deliberate misleading of the Court.
Then having referred to orders which he proposed to make for the parties to attend both post-separation parenting programs as well as counselling and mediation, his Honour referred to his power to impose a bond which he proposed to exercise, saying:
24. One of the options available to me under subdivision (f) is a bond. Section 70NFB provides as much. The father seeks that the mother be placed on a bond to comply with the orders. The mother makes no submissions about that. In my view this is an entirely appropriate case for a bond.
His Honour then turned to the power to vary an existing parenting order in contravention proceedings, being a power which it is important for present purposes to note, the father had sought should be used:
25.Section 70NBA appears in subdivision (b) of Div 13(a) Pt 7 of the Act. It provides that I can vary the parenting orders the subject of the contravention application if it is appropriate to do so. The exercise of that power is not dependent upon the matter being dealt with under sub-division (e) or sub-division (f) and the power is available irrespective of the seriousness the Court attaches to the breaches that have been proved.
26. The father submits that I should vary the order so that [A] is placed into a shared care regime until such time as the mother returns from Byron Bay to the Sunshine Coast and that upon her return from Byron Bay to the Sunshine Coast that the orders of 28 June recommence.
27. If she chooses not to return within six weeks the father asks that there be orders that mirror those that I made on 28 June.
…
28. The mother says that the father's primary proposal, that is a shared care regime until she can relocate, is probably appropriate. In the course of argument I suggested that I proposed to make orders which saw [A] live with her father and have contact with her mother each alternate weekend from 3.30pm on a Thursday to 9.00am on a Monday. I expressed distrust of the mother and her ability to exercise contact in the off week on the Sunshine Coast.
29.At the bottom of all of this is my very grave concern that this child, who is only three years old, is being subjected to an enormous amount of travel for the purposes of maintaining her relationship with each of her parents. None of the blame for that - and I use that word advisedly - can be laid at the feet of the father. Something needs to be done to alleviate that imposition on the child.
30.Mr Hunter, however, in his submissions provides a very persuasive argument that the orders that I proposed would not suit [A]. That is so because of her tender years and, although he did not say expressly, given [A]’s age she needs to have contact with each of her parents regularly so as to maintain an appropriate relationship with them. He also pointed out that for much [A]’s life the mother has been the primary carer and I ought be careful in interfering with that relationship.
31. The orders that I foreshadowed are not appropriate and I will make orders as foreshadowed by the father - that is that commencing forthwith [A] reside with her father for one week from 3.30pm on a Friday in one week to 3.30pm Friday in the next week and each alternate week thereafter and otherwise live with the mother commencing immediately, with [A] to remain with her father until next Friday.
Having received confirmation from Mr Theobald that 3.30pm was a suitable time for the change-over (transcript p 47, lines 4-16), his Honour continued:
32. In the event that the mother relocates to the Sunshine Coast and provides to the reasonable satisfaction of the father proof that she has relocated on a bona fide basis to the Sunshine Coast and to a residence not more than 75 kilometres from the post office at Kawana on the Sunshine Coast, the orders that were made on 28 June 2006, with some variations that I will pronounce shortly, will recommence. The mother will be deemed to have provided evidence to the reasonable satisfaction of the father in compliance with these orders if she provides to him copies of any lease or residential tenancy agreement between she and a landlord and which also demonstrate that [A] is authorised to live with her in premises within
75 kilometres of the Kawana Post Office. She must also provide documents that demonstrate that the child's enrolment at her daycare centre in Byron Bay, howsoever described, has been cancelled.In the event that the mother does not return by 4.00pm on
11 November, 2006 order that [A] live with her father and have contact or spend time with and communicate with her mother from 3.30pm on a Thursday to 9.00am on a Monday and each alternate weekend thereafter and from 3.30pm on a Thursday to 9.00am Friday in the week immediately preceding a non-contact weekend and each alternate week thereafter, provided however that such contact takes place on the Sunshine Coast at an area or place no more than
150 kilometres from the Kawana Post Office.33. I vary the orders of 28 June, 2006 by providing in paragraph 4(f) that all contact from Thursday to Monday and Thursday to Friday provided in these orders be suspended during periods of school holidays.
After some further discussion regarding details in the drafting of the orders, his Honour confirmed through Mr Hunter, the mother’s willingness to enter into a bond (transcript p 48, lines 25-35).
His Honour then had a draft of his orders produced and received minor comment on that draft.
Finally his Honour received submissions and delivered a judgment in relation to costs. We will return to that matter in due course.
The alleged failure to accord procedural fairness to the mother in the making of the contravention findings
In support of the mother’s appeal it was vigorously submitted by Mr Vickers that in reaching the conclusion that the mother had contravened certain orders, his Honour had denied the mother procedural fairness.
As we understood Mr Vickers’ submissions, it was asserted that the mother had been denied procedural fairness because she had either not had access to the material filed by the father in relation to the contravention application, or had had limited time to consider that material; because the father’s material contained evidence which established that the mother had had reasonable excuse for contravening the orders; and because the proper procedure had not been followed in that the mother had not been required to plead personally to the charges.
The difficulty, however, that the mother faces in relation to these claims is that she was legally represented at the hearing on 29 September 2006. If she or her solicitor had not had sufficient notice of the father’s application or time to consider the father’s material, an adjournment should have been sought. It is clear from the transcript of the hearing that no adjournment was sought; indeed the transcript reveals that no complaint at all was made by the mother’s solicitor regarding the notice which the mother had had of the father’s application or of the material relied on in support of that application. In these circumstances, it is not open to the mother to raise on appeal any lack of procedural fairness in relation to the notice she had of the father’s material.
As to the claim made on behalf of the mother that there was material in the father’s affidavit on the basis of which it should have been found that she had reasonable excuse for breaching the orders, it has to be remembered that the mother through her solicitor admitted four of the five contraventions of which she was found guilty, and as the passage of transcript quoted at paragraph 28 above reveals, Mr Hunter made clear to his Honour on three occasions the mother did not claim she had reasonable excuse for the breaches which she admitted.
As to the one breach which the mother did not admit but which was found to have occurred, being that contained in count 8 and which concerned a derogatory comment in relation to the father, the mother’s evidence was that she did not make the comment alleged. His Honour however accepted the evidence of the father that the mother did in fact make the comment. In these circumstances it is difficult to see how any issue of reasonable excuse could arise in relation to this count. There is thus no substance in the mother’s complaints relating to the issue of reasonable excuse.
Finally in relation to the procedural fairness matters, Mr Vickers asserted that Jarrett FM had erred in not having the mother plead personally to each charge. However as will be seen from the first passage of transcript quoted above, Mr Hunter sought to answer each allegation on behalf of the mother. His Honour permitted him to do so. Nothing has been put to us to establish that his Honour erred in adopting that procedure.
As we endeavoured to explain to Mr Vickers at the hearing of the appeals, an appellant is bound by the course that his or her legal representative has adopted at the trial save in exceptional cases. We are not persuaded that this case was in any way exceptional.
Thus we find no merit in the mother’s complaints concerning the manner in which the hearing on 29 September 2006 was conducted by his Honour. Nor have we been persuaded that his Honour erred in finding that the contraventions alleged in counts 2, 3, 4, 5 and 8 had been established, nor in imposing a bond by way of a sanction.
The variation of the parenting orders of 28 june 2006
The primary complaint made on behalf of the mother concerning the orders which his Honour made on 29 September 2006 varying, indeed ultimately reversing, the parenting orders which he had made on 28 June 2006, was that neither party had sought such orders.
It is true that the father’s application that the mother be dealt with for contravention of the orders of 28 June did not seek any variation of the parenting orders of 28 June 2006. However the relevant application form does not provide for the applicant to seek any orders.
But however that may be, the passage from the transcript of 29 September 2006 quoted in paragraph 36 above reveals that the first submission made on behalf of the father by Mr Theobald when invited by his Honour to address on sanction, was for the parenting orders which his Honour ultimately made.
Furthermore, when Mr Hunter had the opportunity to respond on behalf of the mother to Mr Theobald’s proposal, he expressly said that he could not “take issue with that proposal”. Moreover Mr Hunter indicated that he had instructions to that effect. (See paragraph 40 above). Thus there can be no substance in the complaint that neither party sought the varied parenting orders ultimately made.
It was also part of the mother’s case before us that there was not sufficient material before his Honour that would support a change in the residence and contact arrangements for the child, with it also being submitted that the change made was contrary to his Honour’s conclusion reached only a few months earlier that it was in the child’s best interests to reside with the mother.
Section s 70NBA which permits a court in proceedings for contravention of an order to vary that order, provides:
(1) A court having jurisdiction under this Act may make an order varying a primary order if:
(a) proceedings in relation to the primary order are brought before a court having jurisdiction under this Act; and
(b) it is alleged in those proceedings that a person committed a contravention of the primary order and either:
(i) the court does not find that the person committed a contravention of the primary order; or
(ii)the court finds that the person committed a contravention of the primary order.
(2) If Subdivision F applies to the contravention, when making an order under subsection (1) varying a primary order, the court, in addition to regarding, under section 60CA, the best interests of the child as the paramount consideration, must, if any of the following considerations is relevant, take that consideration into account:
(a) the person who contravened the primary order did so after having attended, after having refused or failed to attend, or after having been found to be unsuitable to take any further part in, a post‑separation parenting program or a part of such a program;
(b) there was no post‑separation parenting program that the person who contravened the primary order could attend;
(c) because of the behaviour of the person who contravened the primary order, it was not appropriate, in the court's opinion, for the person to attend a post‑separation parenting program, or a part of such a program;
(d)the primary order was a compensatory parenting order made under paragraph 70NEB(1)(b) or 70NFB(2)(c) after the person had contravened a previous order under this Act affecting children.
(3) This section does not limit the circumstances in which a court having jurisdiction under this Act may vary a primary order.
It will thus be seen that when varying an order under s 70NBA a court must regard the child’s best interest as paramount (with that matter being determined under the earlier provisions of Part VII of the Act).
However in the present case as the above-quoted passages of transcript show, both parties were in agreement not only that the orders of 28 June 2006 should be varied, but also as to the manner in which they should be varied.
But even if the fact of agreement between the parties did not relieve his Honour from the task of satisfying himself that the varied orders would be in the best interests of the child, it has to be borne in mind that his Honour’s decision on 28 June 2006 that the child should live with the mother was a finely balanced decision. A reading of his Honour’s very thorough reasons for judgment delivered on that day, reveals that the child’s interests would be well served in living with her father.
Since we heard these appeals, Warnick J sitting as a single judge has delivered judgment in another appeal from the Federal Magistrates Court which for all publication and reporting purposes will be referred to as Sandler & Kerrington [2007] FamCA 479. In paragraphs 41 to 53 of his reasons for judgment in that case his Honour discussed the use of the power in s 70NBA to vary existing parenting orders. His Honour in effect concluded that a variation made pursuant to s 70NBA should generally be approached no differently to any other application for a variation of parenting orders. As presently advised we agree with his Honour's observations and conclusions concerning this matter.
However the present case is different from the case just mentioned. In the present case the same judicial officer had decided the parenting arrangements for the same child just three months earlier in a very thorough judgment which revealed a finely balanced situation. Moreover as the transcript of the hearing of 29 September 2006 indicates, the parents were in agreement at that hearing regarding the variation to the earlier orders.
Accordingly we also find no substance in the appeal against the parenting orders made by his Honour on 29 September 2006.
The appeal against the contact changeover orders
In relation to the mother’s appeal against Order 5 of the orders of 28 June 2006, being that the change-over for contact should be at a contact centre on the Sunshine Coast, nothing was put to us to persuade us that we should interfere with this order.
The appeal against the costs order of 29 September 2006
It was clear from the mother’s amended notice of appeal filed on 6 December 2006 that she also appealed the costs order made against her by the Federal Magistrate on 29 September 2006. However no submissions made to us on the mother’s behalf appeared to be directed, at least specifically, to that order. Nevertheless we think that we should consider his Honour’s reasons for that order, in order to satisfy ourselves that no error occurred in the making of the costs order.
Before setting out his Honour’s reasons, it will be instructive to set out in full the submissions made to him on behalf of both parties in relation to the costs of the contravention application. However those submissions need to be read against the background of the provisions of s 70NFB(1) and s 70NFB(2)(g) and (h) of the Act:
(1)If this Subdivision applies, the court must, in relation to the person who committed the current contravention:
(a) make an order under paragraph (2)(g), unless the court is satisfied that it would not be in the best interests of the child concerned to make that order; and
(b) if the court makes an order under paragraph (2)(g)--consider making another order (or other orders) under subsection (2) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances; and
(c) if the court does not make an order under paragraph (2)(g)--make at least one order under subsection (2), being the order (or orders) that the court considers to be the most appropriate of the orders under subsection (2) in the circumstances.
(2) The orders that are available to be made by the court are:
(g) to make an order that the person who committed the current contravention pay all of the costs of another party, or other parties, to the proceedings under this Division; or
(h) to make an order that the person who committed the current contravention pay some of the costs of another party, or other parties, to the proceedings under this Division.
The submissions made to his Honour in relation to these legislative provisions and to other matters relevant to the costs application were as follows:
FEDERAL MAGISTRATE: Well, I'll make those changes to the orders and the orders will be issued in those terms. Now, there's an application for costs?
MR THEOBALD: There is, your Honour.
FEDERAL MAGISTRATE: Yes.
MR THEOBALD: Your Honour, in this matter my client has been substantially successful. Your Honour has found the majority of the contraventions proven and serious. He has had to come to Court because of the contravention of the orders by the respondent and- - -
FEDERAL MAGISTRATE: But don't I have to make an order?
MR THEOBALD: No, I don't think you actually have to unless it's a – the contravention is a forced contravention application.
FEDERAL MAGISTRATE: Unless it's a what?
MR THEOBALD: It's a contravention that isn't proven and you then have to consider it.
FEDERAL MAGISTRATE: I thought under section NFA - sorry, NFB - 70NFB - because I dealt with the matter under subdivision 7, NFB says:
If this subdivision applies the Court must, in relation to the person who committed the current contravention; (a) make an order under paragraph 2G.
And 2G is an order that:
The person who committed the current contravention pay all of the costs of another party or other parties to the proceeding under this division.
So I must make that order.
MR THEOBALD: All or some.
FEDERAL MAGISTRATE: Sorry?
MR THEOBALD: I think it goes on into H.
FEDERAL MAGISTRATE: Yes, but I'm only talking about G.
MR THEOBALD: Yes.
FEDERAL MAGISTRATE: I'm looking at 70NF(1)(a). I must make an order under 2G and 2G says that the person who contravenes the order pays all the costs unless - and I'm back to 70NFB(1)(a):
Unless the Court is satisfied that it would not be in best interests of the child concerned to make that order.
MR THEOBALD: Yes.
FEDERAL MAGISTRATE: And then NFB(1)(b) says that if I make an order under 2G I need to look at 70NFB(2). I've sort of done it in the wrong order. And then NFB(1)(c) says that:
If the Court does not make an order under 2G, that is to pay all of the costs, then the Court must make at least one order under subsection (2) being the order that the Court considers to be the most appropriate.
Which brings into play, I think, NFB(2)(h).
MR THEOBALD: Yes. That seems to be the - it's very common, yes.
FEDERAL MAGISTRATE: It is, but I think the upshot of it is that I have to make an order for costs querying what the phrase "all of the costs" means unless I'm satisfied that it would not be in the best interests of the child concerned. Yes.
MR THEOBALD: Your Honour, my client is seeking the cost of my appearance today.
FEDERAL MAGISTRATE: Yes.
MR THEOBALD: Which I have told him will be, including GST, $1650.
FEDERAL MAGISTRATE: Yes. Well, Mr Hunter, first of all, do you say that we’ve got the legislation right?
MR HUNTER: I think you do.
FEDERAL MAGISTRATE: Yes.
MR HUNTER: I think that still grants the Court a discretion.
FEDERAL MAGISTRATE: Yes, it does.
MR HUNTER: But that discretion is limited to an adverse impact - I don't know if that's the phrase - upon the child.
FEDERAL MAGISTRATE: Yes. And what do you say about that?
MR HUNTER: What I say without any evidence, because we've got no statement of financial circumstances before the Court, but what I say - and my instructions are about that, is that any order which required the mother to pay the father's costs would have a significant impact on the mother's capacity to meet her and therefore her child's day to day costs of living. My instructions are that the wife is in receipt of settling [sic] benefits which are supplemented by income from her business as a masseuse.
She hasn't done her last quarterly income statement for settling [sic] but her best estimate is that she averages about $300 a week from her business and that if that is her income from her business her Centrelink benefits will be reduced to about 70 to $75 a week. She receives, in addition, a part parenting payment of $55 a week, $111 a fortnight, and she receives child support from the father presently of $35 a week and that figure will reduce if the father asks the agency to reduce it consequent to the orders you've made.
Her income then, on a weekly basis, is in the vicinity of $465 and I haven't made any allowance for tax on her business income. Her current expenses - her fixed expenses are her housing costs. Your Honour heard the evidence that she has bought a property in her name.
FEDERAL MAGISTRATE: It's a family property apparently.
MR HUNTER: The property, on my instructions, was purchased early this year. She put no equity into it at all. Her mother and sister contributed $70,000 of that equity. The balance of the purchase price of about $330,000 was borrowed from Macquarie Bank. The arrangement she has with her mother and her sister is that she makes a payment of $250 per week, which is about commercial rent, and the shortfall - the monthly mortgage payment of $1685, the shortfall is met by the mother and sister.
So housing costs her $250 a week. She says the necessary groceries, et cetera, for herself and child are about $150 a week; $27 a week childcare expenses; about $50 a week for clothing; other associated costs; medical, pharmaceutical and those sort of things for herself and her child and necessary transport, excluding the costs of travelling to and from Maroochydore are at least $50 a week. Without taking into account other accounts which arise: telephone; electricity; rates; her weekly outgoings are, on my calculation, are in the vicinity of $470 a week against the weekly income of about the same.
She has no other source of funds to meet a costs order. She owns a 1994 Subaru motor vehicle which is worth about $5000 but it's necessary for her and her child's needs. So she has no other source of funds she can call upon to meet a costs order, and any costs order would have to met by way of some sort of instalment arrangement out of her weekly income which would, in my submission, have that significant direct detriment to her capacity to meet the financial needs of the child.
I could address you also on the issue of whether or not the father has been substantially successful but I don't think that's a matter which comes within the province of the matters that exercise your discretion.
FEDERAL MAGISTRATE: Well, it's interesting, isn't it? I suppose this is a more specific provision in the Act and the ordinary cannons of construction would probably mean that the factors under section 117(2)(a) are not relevant but I'm not sure about that. I mean, I'm not that up with the cannons of statutory construction, but 70NFB(1)(a) makes it pretty clear, I would have thought, that the intention of the legislature is that the Court must - I mean, the word "shall" isn't made. You don’t have that difficulty about trying to determine whether the provision is mandatory or directory.
The Court must, in relation to the person who committed the current contravention, make an order unless the Court is satisfied it would not be in the best interests of the child concerned. And you say - I understand your argument to be that it's not in the best interests of the child because the mother has no funds from which she could pay an order for costs. If you take the money off her and you’re taking it off the child, or taking it away from what is available to her to support the child.
MR HUNTER: That's so.
FEDERAL MAGISTRATE: Yes, all right. I understand that.
MR HUNTER: And on that basis I would submit that it's possible for you to make an order that the mother pay under H some of the costs and then some be a nominal figure.
FEDERAL MAGISTRATE: Well, that's the next step in the process, isn't it? One then has to consider whether to make an order under subsection (h) 2(h). All right. Thank you. Do you want to be heard any further, Mr Theobald?
MR THEOBALD: No, your Honour.
His Honour then proceeded to deliver the following reasons for judgment:
36.This is an application for costs following on some findings and the other orders that I have made in relation to the contravention application.
37. I dealt with the contravention application under sub-division (f) of Div 13A of Pt 7 of the Act. Section 70NFB(1) provides that if that subdivision applies a Court must in relation to the person who committed the current contravention make an order under paragraph 2(g) unless the Court is satisfied that it would not be in the best interests of the child concerned to make that order.
38. Section 70NFB(2)(g) provides for the Court to make an order that the person who committed the current contravention pay all of the costs of another party or other parties to the proceedings under this division. What is meant by the phrase "all of the costs of another party" is not entirely clear. Perhaps it means what it says and what is intended is that the order for costs ought to be on a solicitor and own client basis - that is a full indemnity. Maybe it means something less than that.
39.Section 70NFB(1)(a) directs my attention to the best interests of the child. Mr Hunter for the mother argues that the mother is in difficult financial circumstances in the sense that her weekly expenses which, according to the statements made by him from the Bar table, appear to be relatively reasonable, are not met by her income or are very close to the level of income she receives by reason of her physical occupation as a masseuse coupled with the amount she receives by way of Centrelink benefit.
40. In terms of her assets she has an interest, it seems, in a property at Byron Bay, although the extent of that interest is not at all clear. The only other asset available to her apparently is a motor vehicle.
41. If the mother returns to the Sunshine Coast in accordance with the orders that have been pronounced earlier today she will have to accommodate herself on the Sunshine Coast and that will signal another call on her financial resources. It may or may not be the case - I do not know - that she has to continue to meet some financial obligation with respect to the unit at Byron Bay and she will, if she returns to the Sunshine Coast by the stipulated date, become [A]’s primary carer again and that will carry with it the primary responsibility to meet [A]’s welfare.
The father pays some child support, but child support assessed at the administrative rate under the Act does not provide anything like the expense that is associated with child rearing.
42.In those circumstances I am satisfied that it is not in the best interests of [A] to make an order for costs against the mother. The issue then becomes, by reason of what is provided for in
s.70NFB(1)(c) should I make any other order and in particular an order under s.70NFB(2)(h) that the mother pay some of the costs of the father to the proceedings under this division.43. I think an order for some of the costs is appropriate. I think it is appropriate because of the nature of the proceedings, the fact that these proceedings have had to be brought because of the mother's contumelious disregard – that is really the only way I can describe it - of the orders that were made on 28 June and it is a matter that warrants an order for costs.
44. I am informed by Mr Theobold that his client will have incurred costs of today of $1650. I propose to make an order that the mother bear half of those costs, that is $825, and that she pay those costs to the father within six months of today.
As mentioned earlier, no submissions were made to us directly challenging the costs order made by his Honour. Nevertheless we consider it appropriate to say that having regard to the submissions made to his Honour, we can discern no error in his reasons or conclusion in relation to the costs order. Thus we find no merit in the appeal against that order.
The mother’s application to adduce further evidence
There was also before us an application by the mother to adduce further evidence apparently in support of the appeals.
Her solicitor, Mr Vickers, had sworn (on 23 April 2007) an affidavit stated to be “in support of” the mother’s application for further evidence to be received. In his affidavit Mr Vickers explained the difficulties which he and his client had encountered in obtaining the settled reasons for judgment of Jarrett FM in relation to the orders made on 29 September 2007, with those reasons only being received on or about 11 April 2007.
The relevance of the late receipt of his Honour’s settled reasons is not entirely clear to us. If it was for the purpose of seeking an adjournment of the hearing of the appeals on the basis that more time was needed to prepare for the hearing, no such adjournment application was made to us at the hearing of the appeals.
If it was to support an application for leave to amend the grounds of appeal, we would record that we spent considerable time at the hearing of the appeals, establishing exactly what grounds in which notice of appeal Mr Vickers wished to pursue. Certainly in the course of that exercise there was some amendment to the grounds as they appeared in the various notices of appeal, and we are not conscious of having rejected any request by Mr Vickers for any other amendment of the grounds of appeal.
In paragraph 12 of his affidavit, Mr Vickers referred to other affidavit material annexed to his affidavit (being affidavits from the mother and from two friends or acquaintances of the mother), and he claimed those affidavits supported the mother’s “evidence” in relation to some nine specific matters which were then listed.
The only matters amongst the nine specified matters which could have relevance to the matters raised by the grounds of appeal were:
· “whether the best interests of the child were properly considered” when the Federal Magistrate ordered that the child should live with the father;
· “whether the mother had been afforded procedural fairness in relation to the contravention application”; and
· “whether a costs order against the mother was appropriate in the circumstances of those cases.”
It will be appreciated that those three matters were matters of law and therefore matters for submissions rather than for further affidavit evidence. All of these matters have been addressed by us earlier in these reasons.
We are not satisfied having regard to the observations of the High Court in CDJ v VAJ (1998) 197 CLR 172 concerning the admission of further evidence in parenting proceedings under the Act, that it would be appropriate to admit the further evidence sought to be adduced by the mother in this case.
Costs of the appeals
At the conclusion of the hearing of the appeals we invited and received oral submissions in relation to the costs of the appeals.
In the event that the appeals were to be dismissed (as they are to be), the father sought an order for costs including the costs which were reserved on 1 March 2007 when the appeals had been listed before the Full Court for hearing, but were unable to proceed because the settled reasons for judgment in relation to the orders of Jarrett FM of 29 September 2006 were not available.
Given that the mother filed a certificate of compliance in relation to the Appeal Book on 5 February 2007 in circumstances where the Appeal Book did not contain the reasons for judgment of 29 September 2006 notwithstanding that the Appeals Registrar had written to the mother’s previous solicitors on 11 January 2007 advising them of the need to include in the Appeal Book the reasons for judgment of 29 September 2006, we consider that the circumstances justify an order that the mother pay the father’s reserved costs in relation to the hearing which was not able to proceed on 1 March 2006. We also consider that the circumstances justify the making of an order for costs in the father’s favour in relation to the costs of the appeal generally.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 29 May 2007
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