Katar & Sevan
[2024] FedCFamC1A 49
•12 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Katar & Sevan [2024] FedCFamC1A 49
Appeal from: Katar & Sevan [2023] FedCFamC2F 1728 Appeal number: NAA 15 of 2024 File number: ROC 983 of 2023 Judgment of: CAMPTON J Date of judgment: 12 April 2024 Catchwords: FAMILY LAW – APPEAL – Where the father makes an oral application for leave to appeal from an order dismissing his application to vary prior consent parenting orders pursuant to the principles in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”) – Consideration of the principles in Rice and Asplund – Where the fathers grounds are primarily complaints as to weight – Where the father consented to the prior order that provided for the children to relocate with the mother at a specified time in the future – Where the father asserted that there has been a significant change in circumstances by way of the agreed passage of time since the order and the withdrawal of his support of the prior order – Where the father has not demonstrated that the order subject of appeal is attended by sufficient doubt to warrant leave to appeal –Where despite finding that there was no sufficient change in circumstance to warrant a revisitation of the prior parenting orders, the primary judge made orders as to an aspect of parental responsibility – Where both parties agree that such orders should not be disturbed, irrespective of the outcome of the appeal – Leave to appeal dismissed – Orders made for the father to pay the mother’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 64B
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Defrey & Radnor [2021] FamCAFC 67
Denham & Newsham (2021) FLC 94-043; [2021] FamCAFC 141
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall and Hall (1979) FLC 90-713
Hamish & MacPherson [2023] FedCFamC1A 74
Hedlund & Hedlund (2021) 64 Fam LR 458; [2021] FedCFamC1A 84
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jaynes & Rundle [2020] FamCAFC 292
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Langmeil & Grange [2013] FamCAFC 31
Marsden v Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Maviglia v Maviglia [1999] NSWCA 188
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally vUniversity of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Miller & Harrington (2008) FLC 93-383; [2008] FamCAFC 150
Newett and Newett (No 2) (2021) FLC 94–051; [2021] FedCFamC1A 11
Nootkamp & Brulja [2023] FedCFamC1A 90
Nguyen v Nguyen (1990) 169 CLR 245; [1990] HCA 9
Perdicari & Perdicari (2019) FLC 93-914; [2019] FamCAFC 147
Poisat & Poisat (2014) FLC 93-597; [2014] FamCAFC 128
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Rice and Asplund (1979) FLC 90-725; [1978] FamCA 84
SPS & PLS (2008) FLC 93-363
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Number of paragraphs: 59 Date of hearing: 9 April 2024 Place: Sydney (by video conference) Counsel for the Appellant: Mr Galloway Solicitor for the Appellant: P W Skewes & Co Counsel for the Respondent: Ms Willey Solicitor for the Respondent: Michael Stockall Solicitor ORDERS
NAA 15 of 2024
ROC 983 of 2023FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR KATRA
Appellant
AND: MS SEVAN
Respondent
ORDER MADE BY:
CAMPTON J
DATE OF ORDER:
12 APRIL 2024
THE COURT ORDERS THAT:
1.The oral application of the father for leave to appeal is dismissed.
2.The amended Notice of Appeal filed 6 March 2024 is otherwise dismissed.
3.The appellant pay the respondents costs fixed in the sum of $8,274 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Katar & Sevan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
By way of Notice of Appeal filed 15 January 2024, as amended 6 March 2024, Mr Katar (“the father”) appeals from orders made on 18 December 2023 by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing his application, based upon the principles identified in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”), to vary prior orders made on 19 July 2021 as to the parenting of X, born in 2011, and Y, born in 2014 (collectively, “the children”). Ms Sevan (“the mother”) opposes the appeal.
The 19 July 2021 orders provide for the parties to have equal shared parental responsibility of the children, for them to live with the mother, and to spend time with the father during the school term on two afternoons each week, on alternate weekends, and for half of the school holidays. The orders enabled the mother to relocate the children from Town B to Region C (being an approximately 11-hour drive from Town B) upon X completing Year 6 (being at the end of 2023 school year).
The amended Notice of Appeal identified a challenge to all the orders made by the primary judge on 18 December 2023. Those orders, excluding as to a timetable for any costs application, are:
1. That the Orders dated 19 July 2021 remain in full force and effect.
2. That [X] born [in] 2011 attend Grade seven (7) at the F school in [Town E] commencing 22 January 2024.
3. That [Y] born [in] 2014 attend Grade four (4) at the H school in [Town E] commencing 22 January 2024.
…
10. That the Father’s initiating application is otherwise dismissed.
Orders 2 and 3 reflect the schools the mother proposed the children to attend in Region C for the 2024 school year. No ground of appeal, nor the Summary of Argument of the father, addressed any error said to be occasioned by the primary judge as to Orders 2 and 3. It was agreed during the hearing of the appeal, in circumstances where the children had relocated with the mother to Region C in January 2024 and had completed term 1 at the schools identified in Orders 2 and 3 as made 18 December 2023, that the said orders would not be disturbed, irrespective of the success of the appeal or otherwise. This reflected the commonsense position of the father in that, should the appeal be successful, he sought the remission of the matter for trial before a judge of Division 2 other than the primary judge, engaging with the reality that the current orders regulating the parenting of the children provided for them to live with the mother in Region C. The import of this agreed position was that the father restricted his appeal to Order 10 made 18 December 2024.
For the reasons that follow, the oral application of the father seeking leave to appeal from Order 10 made 18 December 2023 dismissing his Initiating Application filed 19 September 2023 is refused and the appeal from that order is dismissed.
BACKGROUND
By way of context, the father is a farmer living in Region J. He was born in 1972 and is currently 51 years old. The mother was born in 1973 and is currently 51 years old. The parties commenced cohabitation in 2009 and married in 2011. They separated on a final basis in 2018. An order for divorce was made in mid-2020.
The father commenced proceedings seeking orders as to the parenting of the children on
7 October 2020. On 1 April 2021 a Family Report was produced by Ms L. The matter was listed for trial on 19 July 2021 before the primary judge. At trial, the father sought for the parents to have equal shared parental responsibility for the children, for the children to remain residing in Town B, Queensland and attend the K school in Town B, spending week about time with each parent. The mother sought for the parents to have equal shared parental responsibility for the children, that the children relocate with her to Region C, and for them to spend time with the father for two weekends each school term and for half of the school holidays.
The parties entered comprehensive consent orders on the first day of the trial on 19 July 2021 as follows:
Living Arrangements
2.That the children [X] born [in] 2011 and [Y] born [in] 2014 (hereinafter referred to as “the children”) live with the mother.
Relocation of the Children’s resident
3.That upon the child [X] completing Year 6, the mother be permitted to relocate with the Children to [Town D] or [Town E].
4.That except as provided by Order 3, the mother is restrained from relocating the residence of the children from the [Town B] area.
Parental responsibility
5.That the parties have equal shared parental responsibility for major long term issues affecting the children which includes but is not limited to decisions relating to the children’s education (current and future), religious and cultural upbringing, health and name, changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with the parent, and all decisions in relation to such issues shall be made jointly by consultation and agreement between the parties and if no agreement can be reached within 14 days of the commencement of such negotiations both parties shall each forthwith arrange and attend family dispute resolution with an approved family dispute resolution practitioner before filing any further application with the Court.
6.That the mother be responsible for all decisions affecting the children’s day to day care, welfare and development when the children are living with her.
7.That the father be responsible for all decisions affecting the children’s day to day care, welfare and development when the children are living with him.
Time
From the date of these Orders until completion of the school year in 2023 or in the event the father relocates to the [Town D] of [Town E] area after the completion of the school year in 2023
8.That the children spend time and communicate with both parties at all such times as may be agreed by failing agreement as follows:-
Regular Time
(a) That the children spend time with the father:-
(i)Each alternate weekend from the conclusion of school Friday until before school Monday or in the event Monday is a public holiday, then until 5.15pm Monday;
(ii)On Monday and Wednesday afternoons from after school each week until 5.15pm and on any other week day where the mother is unable to care for the children after school, from after school until such time as the mother is able to collect the children after finishing work.
School Holidays
(b)The children shall spend time with the father for the first half of all school holiday periods in odd numbered years and the second half of all school holiday periods in even numbered years, with all school holiday periods to be calculated at the conclusion of school on the last day of the school term and to conclude at 5.00pm on the day prior to the next school term commencing.
(c)The children shall spend time with the mother for the first half of all school holiday periods in even numbered years and the second half of all school holiday periods in odd numbered years with all school holiday periods to be calculated at the conclusion of school on the last day of the school term and to conclude at 5.00pm on the day prior to the next school term commencing.
(d)Where there is an even number of nights in any school holiday period, changeover is to take place at 5.00pm on the middle day of that school holiday period.
(e)Where there is an odd number of nights in any school holiday period, the mother on the first occasion this occurs is to have the extra night, with the father to then have the next extra night, and with the parties to continue having terms of the extra night.
Christmas Day
(f)The mother is to have the entire Christmas period, including Christmas Eve, Christmas Day and Boxing Day in all even numbered years.
(g)The father is to have the entire Christmas period, including Christmas Eve, Christmas Day and Boxing Day in all odd numbered years.
Easter
(h)The children spend time with the mother from 3.00pm on the Thursday prior to Good Friday until 5.00pm on Easter Monday in even numbered years.
(i)The children spend time with the father from 3.00pm on the Thursday prior to Good Friday until 5.00pm on Easter Monday in odd numbered years.
Father’s Day and Mother’s Day
(j) In the event that Father’s Day falls on a weekend when the children are with the mother the children shall spend time with the father from 8.30am on to 5.00pm on Father’s Day.
(k)In the event that Mother’s Day falls on a weekend when the children are with the father the children shall spend time with the mother from 8.30am on to 5.00pm on Mother’s Day.
Birthdays
(l) On the children’s and parent’s birthdays:-
(i)when they fall on a school day, the children shall spend time with the parent they are not with at the time from after school until 5.00pm; and
(ii)when they fall on a non school day, the children shall spend time with the parent they are not with at the time from 1.00pm until 5.00pm.
9.That the time referred to at Orders 8(a) above be suspended during all school holiday periods, with the rotation of time pursuant to Order 8(a) to recommence where it ended prior to the school holiday commencing as if the time had not been interrupted.
Telephone Communication
10.That the children be at liberty to communicate with either parent by telephone / Facetime / Skype at any time they reasonably request bur prior to 7.00pm and must be permitted to telephone the other parent without interference from the parent with whom they are with at the time.
11.That both parties be at liberty to telephone / Facetime / Skype the children on days the children have not been in their care between 6.30pm and 7.00pm on a Tuesday, Thursday and Saturday with such communication to take place with no interference from the parent with who the children are with at the time.
12.That in the event a child expresses a wish to return to the care of the other parent, the parent with whom the child is spending time with shall facilitate that return.
Changeovers
13.That all changeovers take place at the children’s school where applicable, and when the children are not at school, all changeovers shall take place with the parent into whose care the children are going to collect the children from the other parent’s residence (where changeover is not at school and the time is not specified for a changeover, changeover shall be 5.00pm).
From the completion of the school year in 2023 and in the event the father does not relocate to the [Town D] or [Town E] area
14.That the children spend time and communicate with both parties at all such times as may be agreed but failing agreement as follows:-
Weekend Time
(a) That the children shall spend time with the father:-
(i)from the conclusion of school Friday until the 5pm Sunday or 5pm Monday in the event Monday is a public holiday, on two weekends per term with the father to travel to [Town D] or [Town E] (at his expense) to spend such time with the children and provided that such weekend does not fall on the Mother’s Day weekend; and
(ii)upon the giving of 14 days notice in writing to the mother, on two other occasions each term for a period of 48 hours, provided that the children attend school during any school days.
School Holidays
(b)The children shall spend time with the father for the school holiday periods at the conclusion of terms 2 and 3 each year with such holiday periods to be calculated to commence on the first Sunday after the conclusion of school on the last day of the school term and to conclude on the Saturday prior to the next school term commencing.
(c)The children shall spend time with the father for the first half of the Easter and Christmas school holiday periods in odd numbered years and the second half of the Easter and Christmas school holiday periods in even numbered years, with such school holiday periods to be calculated to commence on the day immediately following the conclusion of school on the last day of school term and to conclude on the Saturday prior to the next school term commencing.
(d) The children shall spend time with the mother for the first half of the Easter and Christmas school holiday periods in even numbered years and the second half of the Easter and Christmas school holiday periods in odd numbered years, with such school holiday periods to be calculated to commence on the day immediately following the conclusion of school on the last day of school term and to conclude on the Saturday prior to the next school term commencing.
(e)Where there is an even number of nights in any school holiday period, changeover is to take place in the middle day of that school holiday period.
(f)Where there is an odd number of nights in any school holiday period, the father is to have the extra night.
(g)The mother is to have the entire Christmas period, including Christmas Eve, Christmas Day and Boxing Day in all even numbered years.
(h)The father is to have the entire Christmas period, including Christmas Eve, Christmas Day and Boxing Day in all odd numbered years.
Easter
(i)The children spend time with the mother from Good Friday until Easter Monday in even numbered years.
(ii)The children spend time with the father from Good Friday until Easter Monday in odd numbered years.
Father’s Day
(k)On the weekend on which Father’s Day falls the father may travel to [Town D]/[Town E] to spend time with the children from the conclusion of school Friday to 5.00pm Sunday.
Telephone Communication
15.That the children be at liberty to communicate with either parent by telephone / Facetime / Skype at any time they reasonably request but prior to 7.00pm and must be permitted to telephone the other parent without interference from the parent with whom they are with at the time.
16.That both parties be at liberty to telephone / Facetime / Skype the children between 6.30pm and 7.00pm on Tuesday, Thursday and Saturday with such communication to take place with no interference from the parent with who the children are with at the time.
Changeovers
17.That the mother shall deliver (or cause the children to be delivered) to the father to spend time with him in [Town B] and shall collect (or cause the children to be collected from [Town B]) at the conclusion of such time.
18.That in the event the father’s time with the children is to occur in [Town D]/[Town E]l the father is to collect the children from their school and return them to the mother’s residence with the father not to enter the mother’s residence without her express consent/invitation to do so.
19.That the mother be responsible for all travel costs associated with the children travelling to and from [Town B].
20.That with regard to Order 17 that either party is at liberty to arrange for the children to travel as unaccompanied minors.
Children’s Belongings
21.That the parties will ensure that the children’s belongings as required are returned with them to the other parent at the end of that parent’s time with the children.
Notifications / Authorities
22.That in the event the children sustain any serious medical problems, injury, illness, medical emergency or hospitalisation whilst in the care of either parent, the parent in whom’s care the children are in shall immediately notify the other parent where possible, and in the event, within 2 hours, with the other parent to be advised of the name of the treating doctor, hospital and medical contact number and nature of the problem.
23.That both parties provide to the other the names and addresses of the children’s treating doctors, dentists, counsellors and health care providers / medical practitioners, with such information to be kept up to date at all times and with such information to be provided within 48 hours of any change to such information.
24.That both parties are entitled to receive at their own request the sole cost any and all information in relation to health, education and welfare of the children, including but not limited to, details of all illnesses suffered by the children and treatment required, school reports, school photographs, before / after school care information, newsletters, notifications of parent / teacher interviews, photograph order forms and details of any disciplinary matters, attendance at extra curricular activities, and that this Order shall constitute an authority to the children’s medical practitioners, allied health professionals and counsellors, organisers of extra curricular activities and schools, before / after school care to provide that information.
25.That both parties be entitled to attend any school or extra curricular activity to which the parents are invited, including but not limited to parent / teacher interviews, information nights, assemblies, excursions, concerts and sports days.
26.That each party be at liberty to attend the children’s school for the purpose of attending any activity or occasion routinely by parents and for the purposes of discussing the children’s academic (or otherwise) progress with the relevant teaching staff.
Communication between parties
27.That neither parent denigrate the other or any member of that party’s family or household in the presence or the hearing of the children and will use their best endeavours so as not to allow any third party to denigrate the other party or any members of that party’s family or household in the presence of or the hearing of the children.
28. That during the time the children are with either parent, that parent shall:-
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c) not use the children to relay messages to the other parent;
(d)not discuss, or allow any other person to discuss parenting / adult issues or these Orders to or in the presence or hearing of the children
29.That each party inform the other and keep informed within 24 hours of any change to their residential address, postal address, email addresses, landline and mobile telephone numbers.
30.That communication between the parties with respect to the care arrangements for the children be conducted by email or text message where possible.
Miscellaneous
31.That neither parent consume alcohol to the extent that they are over the legal drinking limit whilst the children are in their care and neither parent will use illicit drugs or allow the use of illicit drugs by others in their presence, whilst the children are in their care.
Extra Curricular Activities
32.That the parties will ensure they will not arrange for the children to commence a new extra curricular activity which interferes with the other parent’s time, unless the other parent provides their consent to participate during his / her time, and if such consent is provided, the parent who has provided consent must take the children to such activities during his / her time with the children unless agreed to otherwise between the parties.
33.That each parent consult with the other parent and mutually agreed with respect to:-
(a)the enrolment of the children into extra curricular activities including any groups and associations; and
(b)the children playing and being involved in any sporting activities or tuition and attendance at sports camps.
Overseas Travel
34.That both parties be permitted to travel overseas with the children during any period when the children are to live with or spend time with them, on the proviso that:-
(a)the travelling parent confirms (in writing) with the other parent at least 90 days prior to the commencement of such period, his or her intention to travel overseas with the children;
(b)the travelling parent meet all expenses associated with the trip including visa and passport expenses;
(c)not less than 30 days prior to the proposed trip the travelling parent provide the other parent with a copy of return plane / travel tickets and an itinerary of the travel (with the itinerary to include overseas phone numbers, flight details and hotel / accommodation details);
(d)not less than 30 days prior to the overseas trip, the non travelling parent is to sign and return the travelling parent all necessary visa applications;
(e)not less than 14 days prior to the overseas trip the travelling parent will provide the non travelling parent with the locality of where the children will be staying an a contact phone number and email address on which the children can be reached;
(f)were possible the travelling parent is to facilitate telephone / Facetime or Skype communication between the non travelling parent and the children, once every 2 days;
(g)neither parent is permitted to travel with the children to a country who is not a signatory to the Hague Convention on the Civil Aspects of International Child Abduction with Australia;
(h)neither party is permitted to travel with the children to a country which has been categorised with the level 3 or level 4 travel warning by the Department of Foreign Affairs and Trade.
35.That in addition to the overseas travel periods referred to in Order 34 above, either party is permitted to travel with the children overseas at any other time as may be agreed in writing between the parties (written agreement between the parties is required), on the same conditions as outlined in Orders 34(a) t0 (h) above, with the non travelling parent being entitled to make up time immediately upon the children returning from the overseas trip, at times and dates to be agreed in writing between the parties.
36.That both parties do all things and sign all documents necessary to ensure the children have a current passport at all times with all associated costs to be met equally by the parties and with all necessary documents to be signed within 14 days of request to do so by the other parent.
37.That the mother holds the children’s passports at all times when the children are not travelling overseas.
38.That with regard to Order 37, the father is to return the children’s passports to the mother within 7 days of returning to Australia from overseas (unless agreed to otherwise in writing).
39.That where the children’s passports are lost or stolen whilst in the care of the other parent, that parent shall replace the passports at their own cost.
Family Dispute Resolution
40.That in the event the parties are unable to resolve a significant dispute regarding parenting matters the following is to apply unless otherwise agreed in writing between the parties:-
(a)The parties are to engage in family dispute resolution with a family dispute resolution practitioner to assist with resolving the parenting dispute;
(b)The parties are to jointly agree on who the family dispute resolution practitioner will be;
(c)If the parties cannot jointly agree on who the family dispute resolution practitioner will be:-
(i)the party seeking the dispute resolution shall propose to the other in writing a list of 3 family dispute resolution practitioners with details of their fees, experience and availability;
(ii) the other party is to select a family dispute resolution practitioner from the list within 7 days of being presented with the list;
(iii) if the other party fails to select a family dispute resolution practitioner within 7 days of being presented with the list, the proposing party shall select a family dispute resolution practitioner from the list presented to the other party;
(iv) the cost of family dispute resolution practitioner shall be met equally by the parties.
(As per the original)
On 19 September 2023, in the shadow of the agreed time for the relocation of the children, the father filed an Initiating Application to vary the orders made 19 July 2021 such that the children continue to reside in the Town B area and live with each parent on a week-about basis. The mother filed a Response to an Initiating Application on 16 October 2023 seeking that the father’s Initiating Application be dismissed, that the orders of 19 July 2021 remain in place, and as to the identity of schools the children were to attend in Region C.
On 11 December 2023 Ms L produced another Family Report, filed on 13 December 2023.
THE APPEAL
The father’s Amended Notice of Appeal identified five grounds for appeal, being:
1.That the learned trial judge gave no or no sufficient reasons from which the parties could discern the path of logic for her decision.
2.That the learned trial judge erred in failing to give proper weight or consideration to the Family Report.
3.That the learned trial judge failed properly to take into account that the order from which the Appellant sought to depart was an order:
(a) made by consent, without adjudication.
(b) made to take effect some years in the future.
(c)reflected an agreement as to the placement of the children which agreement had broken down so that previous consent was not now present.
4.That the learned trial judge thereby (and otherwise) fell into error in determining that there had been no material change in circumstances.
5.That the learned trial judge ought not to have determined the matter on an interim basis when the true dynamics of the children’s attachments and apprehensions, and the expression of these matters across two family reports, could only have been properly explored in a trial.
LEAVE TO APPEAL
Although the father sought leave to appeal in his Notice of Appeal filed 15 January 2024, he omitted to do so in his Amended Notice of Appeal. His Summary of Argument did not address the issue.
Parenting orders are child welfare matters within the meaning of s 28(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and reg 4.02 of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) (“the Regulations”). Leave to appeal is not required for orders in child welfare matters. Regulation 4.02(2) provides:
For paragraph (1)(a), a child welfare matter is a matter relating to the following:
(a) the person or persons with whom a child is to live;
(b)the person or persons with whom a child is to spend time or communicate;
(c)any other aspect of parental responsibility (within the meaning of Pt VII of the Family Law Act) for a child.
As identified during the hearing of the appeal, an order dismissing an application does not fall within the regulatory definition of a “child welfare matter” and is not a parenting order (see Nootkamp & Brulja [2023] FedCFamC1A 90).
During the hearing of the appeal the father was consensually granted leave to make an oral application for leave to appeal from the order made by the primary judge dismissing his application to vary the consent parenting orders.
Whilst the discretion to grant leave is unfettered, generally the court will look to see whether the decision is attended with sufficient doubt so as to justify leave and whether a miscarriage of justice would occur if leave was not granted, supposing it to be wrong (Medlow & Medlow (2016) FLC 93-692).
As explained below, the father has not demonstrated that the order dismissing his application filed 19 September 2023 is attended by sufficient doubt to justify a grant of leave. The application for leave will be dismissed.
AN APPEAL FROM A DISCRETIONARY DETERMINATION
The relevant principles governing appeals from discretionary judgments are well settled. Error of the type identified in House v The King (1936) 55 CLR 499 (“House”) at 504–505 must be established. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519 (“Gronow”)).
Ground 5 contends an error of principle. The Summary of Argument of the father in support of this ground was laced with a thread as to a complaint as to a failure to afford procedural fairness, recording that the primary judge “has not properly heard the father”. During the hearing of the appeal, while the father said that no ground of appeal asserted an absence of procedural fairness, his oral submissions did not reflect any abandonment of the complaint exposed in his Summary of Argument. Ground 5 shall be dealt with first as it goes to the integrity of the determination (Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 581, 611-612 and 634).
The father agreed at the hearing of the appeal that Grounds 2, 3, and 4 contend errors as to weight afforded to evidence. As the construction of the father’s grounds and his Summary of Argument creates a nexus between these grounds, it is appropriate to deal with them together. Complaints as to weight face a high hurdle. Absent identifying that the decision is manifestly wrong, they do not form a proper challenge as to discretion (Bugmy v The Queen (2013) 249 CLR 571; Hamish & MacPherson [2023] FedCFamC1A 74 at [38]). The father does not nominate a ground as identified in the last limb of House as to the result achieved being unreasonable or plainly unjust.
Ground 1 contends an error of law in that the primary judge did not provide adequate reasons. It shall be dealt with discretely.
CONSIDERATION
Ground 5
The morphing of the appellant’s complaint as to procedural fairness in the Summary of Argument is reflected in the submission that the primary judge “ought not to have determined the matter on an interim basis when the true dynamics of the children’s attachments and apprehensions, and the expression of these matters across two family reports, could only have been properly explored in a trial”. The father submitted that it was inappropriate for the primary judge to “truncate the proceedings with peremptory dismissal” and that doing so meant the primary judge had “not properly heard the father”.
What is often referred to as the principle or rule in Rice and Asplund rests upon the indisputable proposition that continuous litigation about the living arrangements of children is inimical to their welfare and contrary to their best interest (Langmeil & Grange [2013] FamCAFC 31).
It is well established that the question of whether there has been a sufficient change in circumstances can be determined either by way of preliminary or interlocutory enquiry, or by way of a final hearing (Poisat & Poisat (2014) FLC 93-597 (“Poisat”) at [39]-[41]; Miller & Harrington (2008) FLC 93-383 (“Miller & Harrington”) at [80]-[83]; Jaynes & Rundle [2020] FamCAFC 292 at [14]). However, at whichever stage the determination is made, the rule is a manifestation of the best interests principle (Poisat at [18], [19], [40], and [42]; Defrey & Radnor [2021] FamCAFC 67(“Defrey & Radnor”)) and procedural fairness must be observed (Marsden v Winch (2009) 42 Fam LR 1 (“Marsden & Winch”) at [56]). Save as to complaint, the father made no submission as to an error by the primary judge determining his Initiating Application by way of a preliminary or interlocutory enquiry to support this ground.
As a concept, procedural fairness is concerned only with the fairness of the hearing; not the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [25]). Procedural fairness requires each party to be given an adequate opportunity to be heard and to present their case (Kioa v West (1985) 159 CLR 550 at 582).
The father did not raise at trial any issue, or make any application or submissions, that the matter not to be determined by way of a preliminary or interlocutory enquiry. The transcript records him adopting the contrary course:
HER HONOUR: …. So in the matter of [Katar] and [Sevan], the appearance please for the applicant.
[COUNSEL FOR THE FATHER]: Yes, your Honour. It’s [Ms N], for the applicant [Mr Katar] and I’m instructed by PW Skewes and Company.
HER HONOUR: Thanks very much, [Ms N]. And for the respondent mother?
[SOLICITOR FOR THE MOTHER]: If your Honour pleases, Stockall, S-t-o-c-k-a-l-l, and I appear on behalf of [Ms Sevan].
HER HONOUR: Thanks very much, Mr Stockall. [Ms N], tell me where you’re at and how long you think you will be.
[COUNSEL FOR THE FATHER]: Probably about 40 minutes, your Honour. I’ve got some, well, oral submissions. I know the case – the case outline is just, obviously, basic which is just that the mother wants to relocate to [Town E] and the father thinks that’s a detriment to the children.
HER HONOUR: Sure.
[COUNSEL FOR THE FATHER]: So that’s where we’re at. It’s - - -
HER HONOUR: Okay. So you will need a hearing.
[COUNSEL FOR THE FATHER]: Yes.
HER HONOUR: Are you ready to go now?
[COUNSEL FOR THE FATHER]: Yes.
(Transcript 14 December 2023, p.2 lines 1 – 31)
After identifying the evidence relied upon counsel for the father then commenced submissions. No application was made to cross examine the mother or the family report writer.
A party is bound by the conduct of their case at first instance. The father cannot raise a complaint on appeal when he had the opportunity at the hearing before the primary judge and did not do so (Metwally vUniversity of Wollongong (1985) 60 ALR 68 (“Metwally”)). The particular within the ground, by way of complaint that the primary judge ought not to have determined the matter on a preliminary or interlocutory basis, fails.
During the hearing of the appeal the father conceded that he was not denied the opportunity to present evidence and argument, or the opportunity to engage directly with the primary judge on any of the matters subject of complaint. The particular of the ground as to the father not having an adequate opportunity to present his case and to be heard is not made out.
Ground 5 has no merit and fails.
Grounds 2, 3, and 4
The father’s Summary of Argument records that the “further report [of Ms L], dated 11th December 2023 (filed 13th December) lies at the heart of the controversy”. The experts first report revealed “the attachment the children had to Town B and their reluctance to move away, and that this remained true of them in the interviews conducted for the second report.” The father submitted that the second report reveals the children’s position has become more profound.
Ground 2
The gravamen of ground is that the primary judge failed to give the contents and recommendation of the second report “proper weight” (confirmed at the hearing of the appeal to be sufficient weight) or consideration. Both the first and second reports recommended that children remain living in Town B unless both parents agree to a relocation.
The Full Court more than forty years ago said in Hall and Hall (1979) FLC 90-713 at 78,820:
… There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities...
In Denham & Newsham (2021) FLC 94-043 the Full Court confirmed that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight and that departure from it in such circumstances requires careful consideration, however the ultimate decision must be that of the primary judge.
On any view, the primary judge considered the evidence contained in the family reports:
3They had the benefit of a family report by [Ms L], family report writer, dated 1 April 2021. [Ms L], in her report, formed the view that the children should continue living in the [Town B] area, perhaps until they left for [X] to start his high school years, which would be, of course, at the commencement of Grade 7. [Ms L]also formed the view that the parents should have equal shared parental responsibility once both parents were living in [Town B], for the children to live with the mother, and to spend time with the father on alternate weekends, from after school Friday to before school Tuesday, and for Tuesday and Wednesday overnight in the alternate week, and at any time that the mother cannot care for the children.
…
19They had the assistance of [Ms L], and [Ms L]formed the view that for the time being, the children should stay there, and that the parents might look at doing something later on down the track – for example, when it is time for the older child to start high school, and she also said, in her recommendations, that the children should live with the mother and spend time with the father. The agreement which the parents reached at the door of the Court was the children would live with the mother, and that the time they spent with the father was a shorter period of time than what [Ms L] had suggested. So notwithstanding the father’s application that the children would live with him week-about, what he agreed to at the door of the Court on 19 July 2021 was something less than what the family report had sought, and something much less than what he had sought. He had also agreed to an order that upon the child, [X], completing Year 6, the mother be permitted to relocate with the children to [Town D] or [Town E].
20The family report by [Ms L]at that time is an interesting document insofar as it was clear to [Ms L] that the children were very attached to living in [Town B], and attached to spending a lot of time with both of their parents, and attached to the difference in lifestyle at their father’s home. Their mother is a [public servant], working with [a government department], and the father works on a [...] property. At the time of the final consent orders of 19 July 2021, he was living on a property with his parents and sharing their home. He has subsequently moved from there, and is living on a different property, in a two-bedroom [residence]. [Y], the younger child, who in 2021 would have been in Grade 1, said that [Town B] was her favourite place in the world.
21The parents then, in the updated family report from [Ms L], learned that the children continued to be attached to living in [Town B]. The argument by the father is that the children’s level of expressed distress at the prospect of leaving [Town B] and moving to [Town E] with their mother is so severe that it must not happen. The father, in his affidavit material in support of his application, is absolutely silent about what he has been doing for the last two-and-a-half years to support the children to make them ready for the transition that he knew was coming and that he wanted to have come. The father is so silent about this, that it seems to me I can have no faith that when he consented to an order on 19 July 2021, he was actually telling the Court that this is what he wanted to have happen. Therein lies my problem.
The primary judge carefully considered the expert evidence and the likely distress to the children of relocation. That an appellate court might have arrived at a different outcome by virtue of affording different weight to various matters does not justify the reversal of the decision of the primary judge (Gronow at 519).
Ground 2 is not made out and fails.
Ground 3
Ground 3 was that the primary judge “failed properly to take into account” that the order from which the father sought to depart from was an order:
(a)Made by consent, without adjudication;
(b)Made to take effect some years into the future; and
(c)Reflected an agreement “as to the placement of the children which agreement has broken down so that previous consent was not now present.”
The totality of the father’s submissions in his Summary of Argument in support of this ground were as follows:
14.The learned trial judge placed weight upon the fact that the earlier order was made by consent, in a context (as the reasons must be read) that suggests she considered the earlier order to be unimpeachable by the [father] because it had been made with his agreement. This is contrary to law, it is submitted.
15.Importantly the learned trial judge has not considered at all the fact that the [father’s] consent to the operation of the earlier order was not now present. Furthermore, the withdrawal of consent was not whimsical, or spiteful. It was consistent with the expert evidence that the parties had obtained from the jointly commissioned Single Expert.
(Emphasis added)
The father appears to conflate a legal mistake and discretionary error. The father did not materially expand his written submissions in support of the ground in the hearing of the appeal. The complaint is as to the fact of the earlier order being made with consent achieving excessive weight. A reading of the whole of the reasons, as is self-evident from what is contained earlier in these reasons, does not establish that the primary judge found that the prior consent order was “unimpeachable”. That particular of the ground is not available. The second particular, as to the father now no longer agreeing that the relocation of the children was not in their interests, was repeatedly identified in the reasons and is not made out.
During the hearing of the appeal the father submitted that “the order, at the time that it was made [19 July 2021], was not in the children’s best interests”. This submission was developed to be that, properly considered, the 2021 order ought not to have been made in that it was not in the children’s best interests. No submission was made by the father of this nature or content before the primary judge. As noted above at [28], parties are bound by the conduct of their case at trial (Metwally). Further, the issue was not identified in the father’s Summary of Argument and therefore is outside the scope of the appeal without leave (r 13.23(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)).
The father submitted that his “consent” to the continuation of the operation of the 2021 orders had been “withdrawn” and that this, together with the provision in the 2021 orders being for a future change to the regime regulating the parenting of the children, in and of themselves, were a sufficient change of circumstances to revisit the parenting enquiry. Again, albeit not part of the submissions made to the primary judge, nor specifically identified as a ground of appeal, the father contended that a parenting order with prospective effect, that no longer enjoyed the necessary support of both parents, generated the requisite change in circumstances to achieve a Rice and Asplund threshold. For the reasons identified earlier, such complaint is not available on appeal.
Further, the father did not identify any authority or reasoning to support this original and novel contention. Efforts to induce an appellate court to consider applicable principle ought to be clearly identified and particularised in the grounds of appeal and developed in the Summary of Argument, rather than being elucidated in oral argument during the hearing of the appeal (Nguyen v Nguyen (1990) 169 CLR 245 at 269).
It is uncontroversial that the father, with the benefit of his solicitor and counsel at the 2021 trial, consented to the parenting orders made at that time providing for a change to the regime regulating the parenting of the children at the conclusion of the 2023 school year.
As recorded earlier, each of the factors subject to complaint in this ground were the subject of careful consideration by the primary judge. It was the task of the primary judge to evaluate, weigh, and determine the parties’ various contentions. It is not an error to favour one party’s case over another, unless an error of the kind identified in House is established. It has not been. No mildly persuasive, let alone compelling, submission was made by the father to support this ground. It fails.
Ground 4
By way of Ground 4, the father contends that the primary judge fell into error in determining that there had been “no material change in circumstances”. The descriptor underscoring the ground does not reflect the determinations of the primary judge.
The father submitted that the passage of time and change being a constant of human life, coupled with the future operation of the orders and the parties’ recognition that a further family report was necessary, cumulatively produced the existence of a material change in circumstance.
In Defrey & Radnor, after considering SPS & PLS (2008) FLC 93-363 at [81] and [84], Miller & Harrington at [105], and Marsden v Winch at [58], the Full Court summarised the law concerning Rice and Asplund:
19In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders. Sometimes the test will be easily satisfied even though the issues to reconsider are major ones and sometimes the test will be easily satisfied even though the issues to be revisited are relatively minor in character. In both situations, the overarching test is to be applied, namely, (having regard to the best interests of the child) new events or changed circumstances have to be sufficient to provoke a new inquiry.
20It is also useful when considering, as a preliminary matter, what issues a parent might be permitted to re-litigate, to remember that under s 69ZQ(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), there is a mandatory requirement to decide which of these issues in the proceedings require full investigation and hearing.
21The rule in Rice & Asplund involves the exercise of discretion and not merely a process of making factual findings. That is because the “rule” is a manifestation of the best interests principle. All s 60CC(2) and (3) matters, so far as they are relevant, must be considered, to the extent that they can be, based on the material before the court. The rule focuses particularly on s 60CC(3)(l) and the preference to make final orders in parenting matters that are least likely to lead to the institution of further proceedings in relation to the child. Axiomatically that is because unless other considerations are more weighty, it is not in the best interests of a child for that child to be the subject of repeated litigation between his/her parents. There is a focus in an application of this kind upon the change(s) in circumstances that outweigh the negative impact of reopening litigation. Although when considering the preliminary issue, if cross-examination is not permitted, then the evidence of the father is to be taken at its highest, and it is not only the father’s evidence that is considered.
22Consequently, the challenge to the primary judge’s discretionary decision is one to which the normal principles in House v The King (1936) 55 CLR 499 and Gronow v Gronow (1979) 144 CLR 513 apply. The primary judge’s task was a two-staged process. First, to make findings of fact as to what changes there had been in circumstances since the making of the 2015 orders and secondly, to assess whether or not the father had established that these changes are sufficient to provoke a new inquiry, or put in another way, whether the father has established a prima facie case of changed circumstances that would justify embarking on a second contested parenting hearing as being in the child’s best interests.
(Emphasis added)
The primary judge gave consideration to the issue as to any change in circumstances, recording the evidence of Ms L identified earlier in [3], [19], [20] and [21] of the reasons for judgment and:
15Of course, one of the things which the rule in Rice & Asplund is trying to do is to shelter children from all of the things that litigation bring, so the impact upon parents and any impact upon children. Of course, parents in their parenting are not acting in some sort of silo, and it is unrealistic to expect that the stress of litigation – even if it is a stress in the background, is not something which would be not impacting upon a parent. Here, the parents, through their lawyers, have agreed that the children would participate in a family report interview process. It is often considered by the Court that that is directly bringing the children into the litigation, and that is the one space where children are directly impacted upon by the litigation that their parents have chosen to bring or are responding to.
16 So we already have an impact upon these children, by the fact that their parents are unable to agree. So one of the things which the rule in Rice & Asplund is trying to do has been wholly unsuccessful with this family. The children have been adversely affected by this ongoing dispute between the parents – they are both plainly distressed by it, and further to that, they have had the opportunity now to speak with a family report writer. Of course, [Ms L] is an experienced family report writer, and her capacity to make the process that the children are involved with her as good as it can possibly be is undoubted by me. I do think though that what the parents have managed to do is put the children in the middle of this dispute.
…
22 On 19 July 2021, the father consented to an order which put, front and centre on the order, that the children would be leaving [Town B] at the end of [X’s] Grade 6. Since then, the father has, it would seem, not wanted that to happen, and has not done anything to support it happening. From sometime in June/July this year, he had his solicitor send correspondence to the mother, and then he commenced these proceedings in September 2023. The children did not want to leave [Town B] two years ago, and they do not want to leave [Town B] now. This, of course, is not a matter for the children to determine. The parents themselves agreed that it was in the best interests of the children that they leave [Town B] at the end of [X’s] Grade 6. So the father, through consenting to the order, was telling me that then. His behaviour since causes me to believe that he has not been supportive of the order that he, in fact, agreed to, and that reflects very poorly on him.
23 I cannot go so far as to say that he has been undermining the order because I cannot test the facts, but it seems to me very concerning that the father having consented to an order, has not then been doing what he needs to do to prepare the children for the inevitable. The only other thing which has changed – and to be clear, I do not believe that anything has changed, the children did not want to leave [Town B] in 2021, and they do not want to leave [Town B] in 2023, but their parents both agreed that that was what would be for their best at the end of 2023. The only other thing which has changed is the father’s accommodation. He is no longer living with his parents - one of his parents has gone into some form of nursing care. He and the children, when they are with him, have moved to a different property, which is some little way outside of [Town B]. He says in his material that it is a two-bedroom [residence], so the children can have their own room, meaning the children would be sharing a bedroom.
24 Even though he says that that is the case, the children and he all sleep in the same room, it would seem. [X] sleeps on the lower bed of a bunk bed, [Y] sleeps on a mattress on the floor next to the father, sleeping on a mattress on the floor. The earlier family report had spoken about the need for the father to make appropriate arrangements for the children’s sleeping. The children are now 12 and nine, and them sharing a bedroom into the future might become problematic when they become adolescents. In any event, that seems to me to be barely a change of any moment. It was contemplated in the last family report that he needed to be moving out, and he has eventually done it, so it is not really much of a change.
25 The only other change which, it seems to me, is useful to understand is that very much lately, [Y] has been diagnosed with [a learning difficulty]. [Y] has been struggling at school, and now that she has that diagnosis, that may help everybody work out what she needs to be struggling less at school. [Y] and [X] have made remarks about how in the event they are forced to live in [Town E], they will vote with their feet and try and hitchhike back to [Town B]. The father should have promptly put a stop to this kind of nonsense a long time ago. He consented to an order in July 2021 that it was best for them to make that move. His application before me now is almost exactly the same as the application which he made in 2020, for the children to be living week-about in [Town B].
26 His affidavit is absolutely full of complaints about the mother and their inability to parent together. How he thinks he would be able to manage an equal time arrangement, and how on earth that could be consistent with the best interests of the children, when the parents really – well, when the father’s view seems to be one purely of complaint about the mother. It is incomprehensible really.
27 The fact that the children are speaking in the way that they do to the family report writer is really, it seems to me, not a new circumstance. It is an expected outcome when they have had one parent – their mother, plainly making it plain that the plan is, as she would have properly understood the agreement was, for the children to be moving to [Town E] at the end of this school year, and where that is not being supported at all by the father, who is allowing the children’s displeasure with this a space to be aired. That is a change in circumstance. The father’s position always was, in his Court material, that he wanted the children to live in [Town B], and for them to spend week about. So the only change in circumstance is that the father agreed that it was in the children’s best interests that they leave, and the father has not been making that happen. That is not a change in circumstance. That is a father behaving in a way which is contrary to the orders that he agreed to.
…
29The mother is an experienced parent. She has been the primary caregiver of the children. The children may well experience some struggle with settling into their new place. They may well not want to move town. Decisions about where children live are not a matter for children. They are a matter for the grown-ups, and the grown-ups here in July 2021 said it was in the best interests of the children, that now at this point in their lives, they move with their mother to [Town E].
Different judges can quite properly achieve different outcomes on the same evidence (CDJ v VAJ (1998) 197 CLR 172 at 218–219). That an appellate court may come to a different conclusion does not form a basis for appeal (Hedlund & Hedlund (2021) 64 Fam LR 458 at [12]). That is not the test on appeal. It was open to the primary judge, on a consideration of all of the evidence, to conclude that there was not sufficient significant or material changes in circumstance to allow for the revision of the prior orders. Ground 4 has no merit and fails.
Ground 1
The father conceded during the hearing of the appeal that this was a poorly drafted ground, in that it cannot be complained as a failure to provide any reasons. Plainly, reasons were provided within the paragraphs explicitly cited herein. The ground then becomes the provision of adequate reasons.
The hearing was conducted on Friday 14 December 2023 with judgment being reserved to Monday 18 December 2023. The reasons for judgment of the primary judge were approaching ex tempore. It is well established that “[a]n ex tempore judgment should not be picked over” (Maviglia v Maviglia [1999] NSWCA 188 at [1]) and that “[a]ppellate courts make assumptions in favour of an ex tempore judgment, including that a failure to refer to evidence or analyse it fully may be excused on the basis that the currency of the judgment makes it unlikely that it was overlooked” (Perdicari & Perdicari (2019) FLC 93-914 at [25]).
The father’s complaint as to the primary judge failing to provide sufficient reasons was described as the parties not being able to discern the path of logic for the decision. In Bennett and Bennett (1991) FLC 92-191 the Full Court said that the adequacy of the reasons will depend upon the circumstances of the case.
The father’s written and oral submissions did not engage with the ground, but rather were a protest at the outcome. The reasons are clear as to identifying the basis of the decision and the extent to which the parties’ submissions were understood. The reasons do justice to the issues posed by the parties in this proceeding (see Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110).
Any complaint as to a failure to give adequate reasons cannot not be maintained. Ground one fails.
THE FAILURE OF THE APPELLANT TO IDENTIFY AN ERROR IN THE MAKING OF THE ORDER AS TO SCHOOLING IN 2024
Notwithstanding the mother sought at the primary hearing that the father’s Initiating Application filed 19 September 2023 be dismissed grounded from principles identified by the Full Court in Rice and Asplund, she also sought an order that the father facilitate the attendance of each of the children at schools she proposed in Region C commencing from 22 January 2024. At the hearing of the appeal, it was agreed that an order as to the identity of the school that the children attend engages with an aspect of parental responsibility (see s 64B of the Family Law Act 1975 (Cth)).
The Full Court in Newett and Newett (No 2) (2021) FLC 94–051 at [34] emphasised the importance of an appellant properly particularising the asserted error which they contend was made by the primary judge. The error of the primary judge in dismissing the proceeding to vary parenting orders, and implicitly any controversy as to any parental responsibility, and then making orders engaging with that subject matter, is obvious. Notwithstanding the High Court confirming in Warren v Coombes (1979) 142 CLR 531 that “[t]o perpetuate error which has been demonstrated would seem to us a complete denial of the purpose of the appellate process”, for the reasons recorded earlier, Orders 2 and 3 as made 18 December 2023 are no longer the subject of controversy and will not be discharged.
CONCLUSION AND COSTS
The appeal will be dismissed.
In the event that the appeal was unsuccessful, the mother sought costs in the fixed sum of $8,274. The father did not dispute that he ought to pay the mother’s costs in the event the appeal was unsuccessful and did not dispute the reasonableness of quantum of the costs sought. Such order will be made.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 12 April 2024
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