Keach & Keach

[2007] FamCA 1496

FAMILY COURT OF AUSTRALIA

KEACH & KEACH [2007] FamCA 1496

FAMILY LAW – CHILDREN – APPEAL – INTERIM PROCEEDINGS – whether the trial judge erred in applying the principles contained in Cowling v Cowling (1998) FLC 92-801 in determining interim proceedings – whether the trial judge erred in failing to consider whether the children should spend equal time with both parents – whether the trial judge erred in failing to consider whether the children should spend substantial and significant time with the father – whether the trial judge failed to take the objects and intentions of the Family Law Act 1975 (Cth) as amended into account – appeal allowed.

Family Law Act1975 (Cth) – ss 60B(1), 60CC(2), 61B, 61DA, 65DAA

Harris v Calladine (1991) FLC 92-217
Cowling v Cowling (1998) FLC 92-801
Goode & Goode (2006) FLC 93-286

APPELLANT: Mr Keach

RESPONDENT: Mrs Keach

FILE NUMBER: SYF 2181 of 2006

APPEAL NUMBER: EA 73 of 2006

DATE DELIVERED: 21 December 2007

PLACE DELIVERED: Perth

PLACE HEARD: Sydney

JUDGMENT OF: Bryant CJ, Finn and May JJ

HEARING DATE: 31 October 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 12 July 2006

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lethbridge SC

SOLICITOR FOR THE APPELLANT: Adrian Twigg and Co.

COUNSEL FOR THE RESPONDENT: Mr Kearney

SOLICITOR FOR THE RESPONDENT: Barkus Edwards Doolan

Orders

1. That the appeal be allowed.

2. That the application be remitted for re-hearing.

3. That the orders made by Cohen J on 12 July 2006 be discharged with effect from 5.00 pm on 14 January 2008.

4. That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.

5. That the Court grants to the appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant father in respect of the costs incurred by the appellant father in relation to the appeal.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 73 of 2006
File Number: SYF 2181 of 2006

Mr Keach

Appellant

and

Mrs Keach

Respondent

REASONS FOR JUDGMENT

1. This is an appeal by the appellant father against an interim decision made by Cohen J on 12 July 2006 in a parenting matter.  The decision was made shortly after the provisions of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amending Act”) came into effect on 1 July 2006.

2. It is fair to say that the amending Act effected considerable change to the legislative pathway by which parenting decisions should be reached.  The trial judge in this case had no Full Court assistance when applying what was very new legislation.

3. The matter came before the trial judge by way of review of earlier interim orders made by a judicial registrar.  The orders made by the judicial registrar were made prior to the amending legislation coming into effect but as a review of the decision of a judicial registrar is conducted as a hearing de novo (Harris v Calladine (1991) FLC 92-217), the law to be applied by the trial judge was that in existence when the matter was heard by him. There is no doubt that his Honour applied the law as amended which had commenced on 1 July 2006.

Background

1. There was no controversy as to the background facts which can be relevantly summarised as follows:

   a)At the time of trial, the father was aged 38 years and the mother was 29

   b)The parties commenced cohabitation in 1996, were married in 1999 and finally separated in 2005

   c)They had two children, T born in November 2003 (2.5 years of age at date of hearing) and R born in May 2005 (1 year at date of hearing)

   d)The father commenced proceedings in February 2006 seeking interim and final parenting orders

   e)The interim applications were heard and determined by a judicial registrar and relevantly the orders provided for the children to reside with the mother and have contact with the father from 9 am to 6 pm each Tuesday, Thursday and Sunday

   f)The trial judge delivered reasons for judgment on 12 July 2006 and in effect confirmed the orders of the judicial registrar

Reasons of the trial judge

1. It is convenient to set out the reasons the trial judge came to his conclusion, as it informs the grounds of appeal and the way in which the matter proceeded before us.

2. The father’s application sought that:

   (1)the children live with him for periods of one half of each school holidays;

   (2)during term periods:

   (a)that R live with him from 9 am each Wednesday until 10 am the following Friday;

   (b)that T live with him from the conclusion of day care on Wednesday until 10 am the following Friday; and

   (c)both children live with him each week either Sunday from 9 am to 6 pm or alternatively each Saturday and Sunday from 9 am to 1 pm at the mother’s option.

   The father also sought orders for the children to spend time with him at Christmas, birthdays and on Father’s Day.

3. The mother opposed those orders and sought that until further order the father have contact with the children on Tuesdays, Thursdays and Sundays from 9 am until 4.30 pm.

4. Relevantly, neither party sought orders for parental responsibility in their original applications but that is unsurprising given that the applications were filed five months prior to the commencement of the amending legislation in which parental responsibility and its consequences assumes a more significant role in proceedings.

5. The father sought before the trial judge that his Honour make an order granting the parents equal shared parental responsibility under the new s 61DA of the Family Law Act 1975 (Cth) (“the Act”) and with the consequence that when making such an order the Court would then be required to apply the provisions of

   
   

   s 65DAA(1) and s 65DAA(2) and consider whether the children spending equal time or substantial and significant time with each parent would be in the best interests of the children and reasonably practicable, and if it was, to consider making such an order.

6. The mother submitted that the trial judge should not make any order for interim parental responsibility, resulting in the parties having, by operation of law, shared but not necessarily equal parental responsibility. In that circumstance, she submitted that the provisions of s 65DAA would not apply and the Court would not be required to consider whether the children should spend equal time or substantial and significant time with each parent.

7. The mother submitted that the Court should simply apply the principles in Cowling & Cowling (1998) FLC 92-801. The decision in Cowling provided relevant criteria for the determination of interim proceedings for residence and contact.  It was submitted that the relevance of the application of the principles in Cowling to this case was that where the children were living in an environment in which they were well settled, their stability would usually be promoted by orders which provided for the continuation of that environment until the hearing for final orders, unless there were strong or overriding indications relevant to the children’s welfare to the contrary.  Such indications would include convincing proof that the children’s welfare would be endangered by remaining in that environment. 

8. The trial judge dealt first with the submissions of the father that an order should be made granting equal shared parental responsibility and consequently, that the trial Judge must consider whether the children should, in their best interests, spend equal time with each of the parents and if not, significant and substantial time with the father.

9. The trial Judge began his analysis by consideration of the definition of “parental responsibility” in s 61B of the Act. He observed that pursuant to s 61C, each parent has parental responsibility for children under 18 years without any order of the Court and he further observed that by s 61DA there is a presumption that, when making a parenting order, it is in the best interests of a child for both parents to have equal shared parental responsibility for the child. His Honour noted that the presumption is removed in certain circumstances which do not apply here. His Honour noted that whether or not there was an order for equal shared parental responsibility was an important element of the Act because s 65DAA distinguishes between situations where there is, and where there is not, any parenting order giving equal shared parental responsibility and observed that it only applies if there is an order to that effect.

10. His Honour opined that it was clear from other parts of the legislation that there was otherwise, by operation of law rather than order, shared parental responsibility which may not be equally shared. He concluded that there was therefore an implication that an order for equal shared parental responsibility was unnecessary. His Honour then indicated that there was only a requirement that the Court consider whether it would be in the best interests of the child to spend equal time, or if not, substantial and significant time, with both parents where there was an order in force or an order is to provide for equal shared parental responsibility. In particular, his Honour said “under the present legislation it is not the case, on my understanding of the Act, that the Court must consider these matters in every application for such parenting orders. It only must do so if there is an equal shared parental responsibility order or there is to be one”.

11. The trial judge concluded that an order for equal shared parental responsibility should not be made in interim proceedings unless it was made for a particular purpose.  This, his Honour concluded, was because it should only be made if all the relevant factors were before the Court, unless there was a special need for such an order before a final hearing.

12. His Honour then concluded that there was no specific reason in this case to make an order that would affect the long term decisions for the children and thus no need to make an order for equal shared parental responsibility. That being so, it followed that on the reasoning described, there would be no need to consider the matters in s 65DAA, that is whether the children should have equal time with both parents or substantial and significant time with the father. Because the matter was for interim orders, his Honour considered that the approach to be taken was clearly that stated in Cowling (supra).

13. His Honour cited from the headnote of Cowling the gravamen of the decision and indicated that he would follow this approach.

14. The trial judge then set out a history of the contact that each of the parties asserted had taken place between the time of separation and hearing.  He observed that orders had been made by a judicial registrar and those orders had been complied with.  His Honour noted that for his purposes, the regime which was a consequence of the orders was of relevance, rather than the orders themselves.  His Honour noted that since the orders had been in place, the children had lived with their father from 9.00 am to 6.00 pm each Tuesday, Thursday and Sunday.  His Honour noted the wife wanted to adhere to the current regime while the husband sought, at least, that his time with the children on each of those days be extended to overnight, although he would prefer that the children spend equal time with each parent.

15. His Honour considered other material in the affidavits of the parties, much of it of a conflicting nature.  Finally his Honour said:

    I cannot determine where the truth lies among the conflicting allegations and accusations or what the cause of the Wife’s illness and the children’s disturbances are or even to what degree they exist.  Because of their ages, I cannot know what the children’s wishes might be.  They have expressed none.

    The children have lived since May under settled arrangements which are not greatly different to those which have largely existed since separation.

16. His Honour noted that because of their ages the children were unlikely to consciously appreciate that arrangements now in place had in the past been different and were more likely to be attached to the wife than the husband because she had been their primary carer. 

17. His Honour expressed concern that the evidence suggested the children were not stable and well-settled, but opined that to alter their living arrangements had a greater likelihood of further unsettling or destabilizing them.  He noted that there was no convincing proof that the maintenance of the current situation would make their position worse and in the circumstances determined that the safest thing to do was to leave things as they stand “until a decision based on a full understanding of the circumstances they are and are likely to be in can be made.”

18. His Honour determined there was no benefit to the children in providing for special days unless the parties could learn to compromise and cooperate for the sake of the children.  He opined that at the children’s level of maturity these events could only be for the adults’ benefit until final orders could be made.

Grounds of appeal

1. By his Notice of Appeal filed on 28 July 2006 the appellant father identified five grounds of appeal which are as follows:

   1.   That his Honour erred in principle that, in determining the application, he:

   (a)Failed to apply sections 61DA and 65DAA; and/or

   (b)Misinterpreted and wrongly applied s 65DAA.

   2. That His Honour erred in failing to have sufficient regard to the objects and the intentions of the Family Law Act (Shared Parental Responsibility) Amendment Act (sic).

   3. That His Honour erred in either failing to make an Order for the Husband and the Wife (sic) have shared parental responsibility for the two children of the marriage and further failed to consider the matters set out in sections 61DA, and 65DAA.

   4.   That His Honour erred in finding that in the circumstances of the case there had been in effect some status quo which ought to be continued, or, in the alternative, erred in finding that the principles in Cowling v Cowling were applicable in the determination of the application.

   5.   That his Honour by continuing with the regime created by Order 1 made by the Judicial Registrar on 16 May 2006 fell into error by assuming that (sic) “the safest thing to do” and that equated to what was in the best interests of the children.

Applicable law

1. In Goode & Goode (2006) FLC 93-286 the Full Court answered nine discrete questions in relation to the amendments to the Act and, in addition, set out the effect of the amendments in Part VII of the Act which came into effect on 1 July 2006. As that case concerned interim parenting orders, the Full Court determined to what extent Cowling (supra) continued to apply in interim parenting proceedings after the commencement of the amending Act.  It is convenient for us to deal with the Full Court’s conclusions in reference to the specific grounds of appeal.

Discussion

1. The first and third grounds of appeal assert that his Honour erred in failing to make an order for the husband and wife to have equal shared responsibility for the two children of the marriage.  It is asserted his Honour failed to apply

   
   

   s 61DA and s 65DAA and /or misinterpreted and wrongly applied s 65DAA.

2. Section 61DA says as follows:

   (1)      When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

   (b)family violence.

   (3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

3. In Goode & Goode (supra) at paragraphs 43 and 44 the Full Court said as follows:

   Thus, in summary, when making a parenting order in relation to a child, the Court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.  The presumption however does not apply where there are reasonable grounds to believe there has been abuse of the child or family violence (s 61DA(2)) or, when making an interim order, the Court does not consider application of the presumption appropriate (s 61DA(3)).  The presumption may be rebutted if the Court is satisfied that it would conflict with the child’s best interests (s 61DA(4)). 

   The importance of s 61DA is that if the Court applies the presumption of equal shared parental responsibility when making parenting orders, then that presumption is the starting point for a consideration of the practicality of the child spending equal time with each of the parents and, if it is consistent with the best interests of the child and not impracticable, the Court must consider making an order that the child spend equal time with each of the parents. If the Court does not make such an order, it must consider whether making an order that the child spend substantial and significant time with each of the parents would be in the best interests of the child and not reasonably impracticable and, if so, must consider making such an order (see s 65DAA). Section 65DAA(3) explains the meaning of “substantial and significant time”.

4. In Goode & Goode (supra) the Full Court also considered the question whether and to what extent the presumption in s 61DA applies in interim proceedings. In Goode & Goode the respondent mother had submitted that the question of equal shared parental responsibility was not an issue in the interim proceedings before the judge at first instance because it was not sought by the father.  The Full Court said at paragraph 51:

   We see little purpose in this debate which is essentially about terminology. As we have already indicated, it is not necessary to seek an order for equal shared parental responsibility to trigger the presumption in s 61DA. All that is required is that the Court be making a parenting order. Thus, it does not matter whether the issue of equal shared parental responsibility was put in issue by the parties or either of them, as the Court is required to apply s 61DA in any case in which a parenting order is to be made.

5. Section 64B(2) of the Act provides that a parenting order may deal with one or more of the following:

   (a)the person or persons with whom a child is supposed to live;

   (b)the time the child is to spend with another person or other persons;

   (c)the allocation of parental responsibility for a child;

   (d)if 2 or more persons are to share parental responsibility for a child--the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;

   (e)the communication a child is to have with another person or other persons;

   (f)maintenance of a child;

   (g)the steps to be taken before an application is made to a court for a variation of the order to take account of the changing needs or circumstances of:

   (i)          a child to whom the order relates; or

   (ii) the parties to the proceedings in which the order is made;

   (h)the process to be used for resolving disputes about the terms or operation of the order;

   (i)any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

1. Thus orders concerned with who the child is to live and spend time with and the communication the child is to have with another person or other persons are all parenting orders.

2. In this case his Honour was being asked to make orders about the parent with whom the children should live and spend time with and thus was being asked to make parenting orders.  That being the case, his Honour was required to apply the presumption that it was in the best interests of the child for the parents to have equal shared parental responsibility.  We also observe that his Honour noted that circumstances in which the presumption would not apply or be rebutted were not applicable in this case.

3. His Honour’s decision not to apply the presumption and thus make an order for equal shared parental responsibility resulted from an erroneous understanding of the operation of the amendments to the Act. His Honour’s conclusion that there is an implication in the legislation that an order for equal shared parental responsibility is unnecessary and that such an order should not be made in interim proceedings unless it was “needed for a particular purpose” also arises from a misunderstanding of the legislation.

4. As the Full Court said in Goode & Goode at paragraph 65.2:

   The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and s 61DA(2)).

5. Further at paragraph 56 the Full Court said:

   In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the child that the child’s parents have equal shared parental responsibility as expressed in s 61DA, subject to the qualifications in sub-sections (2), (3) and (4).

6. His Honour failed to appreciate that because he was making parenting orders in relation to the children (being orders in relation to with whom the children should live and spend time) he had to apply the presumption in s 61DA for equal shared parental responsibility (subject to the qualifications contained in that section).

7. Importantly, the Full Court in Goode & Goode (supra) went on to say at paragraph 65.5:

   When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)). 

8. In this case his Honour did not consider s 65DAA, concluding that the Court was only required to consider whether it would be in the best interest of the children to spend equal time or, if not, substantial and significant time with their parents when there was an order in force or an order was to provide for equal shared parental responsibility. As we have found that his Honour erroneously failed to apply the presumption of equal shared parental responsibility, it follows that he erroneously failed to consider the matters in

   
   

   s 65DAA.

9. Although not the subject of a specific ground of appeal we observe that his Honour was also in error in concluding that:

   …there is only a requirement that the Court consider whether it would be in the best interests of the child to spend equal time or, if not, substantial and significant time with its parents where there is an order in force or an order is to provide for equally shared parental responsibility. Under the present legislation it is not the case, on my understanding of the Act, that the Court must consider these matters in every application for such parenting orders. It must only do so if there is an equal shared parenting responsibility order or there is to be one.

10. In Goode & Goode (supra) the Full Court set out the circumstances in which the Court was obliged to consider an order for the child to spend equal time with the parents or substantial and significant time with one parent. The Court specifically addressed this question and said at paragraphs 46 and 47:

    However, this is not the only way in which the Court could consider equal time.  Even if the presumption is rebutted or is not to apply in the interests of the child, if one or both of the parties is seeking such an order, the Court would normally consider, in the making of an order, what each party was seeking when considering the child’s best interests in accordance with the objects in s 60B and the primary and additional considerations in s 60CC.

    Similarly, even if the presumption of equal shared parental responsibility is not applied and neither party seeks an order for equal time (or by implication substantial and significant time), the Court is nonetheless required to consider, in determining what is in the best interests of the child, the arrangements that will promote the child’s best interests.  Subject to according procedural fairness to the parties, this could include a proposal that neither party had advanced, if it was in the Court’s view ultimately in the child’s best interests for such an order to be made (U v U (2002) 211 CLR 238; (2002) FLC ¶93-112 and Bolitho and Cohen (2005) FLC ¶93-224).

11. In this case the father’s application clearly sought substantial and significant time and his Honour did not deal with that application for reasons which are apparent in the reasons for judgment and described above.

12. Thus, in our view, Grounds 1 and 3 must succeed.  We emphasise however, in fairness to his Honour, that he did not have the benefit of the Full Court’s decision in Goode & Goode at the time of the hearing before him, which was shortly after the amending Act took effect. 

13. Ground 2 asserted that his Honour erred in failing to have sufficient regard to the objects and intentions of the Act. The Full Court in Goode & Goode at paragraph 80 said:

    Even absent the application of the presumption and thus the requirement to consider equal or substantial and significant time where it is not contrary to the child’s best interests and otherwise practicable, the addition of sub-section (a) to s 60B(1), which is to ensure that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests, is not necessarily consistent with a preference at an interim stage in favour of maintaining a status quo. That is not to say that maintenance of a stable arrangement will not be in the best interests of children in a particular case, but it will be one of the factors to be considered pursuant to the additional considerations in s 60CC(3) and to be determined in conjunction with the primary consideration in s 60CC(2)(a) of the benefit to the child of having a meaningful relationship with both of the child’s parents.

14. We agree with the appellant’s submissions that his Honour failed to have regard to the objects in s 60B(1) and the primary considerations in s 60CC(2) and thus Ground 2 must also succeed.

15. Ground 4 asserted that his Honour erred in finding there had been some status quo which ought to be continued or that the principles in Cowling were applicable in determining the application. 

16. In Goode & Goode the Court answered the specific question “To what extent does Cowling continue to apply (in interim proceedings)?” In summary, the Full Court concluded there were many elements in the Act that now militated against the continued application of the principles in Cowling and in particular the principle whereby where the evidence established at the date of hearing that the child was living in a well-settled environment, the child’s stability would usually be promoted by the making of an order providing for the continuation of the arrangement until the hearing for final orders unless there were overriding indications relevant to the child’s welfare to the contrary.

17. At paragraphs 70 to 73 the Full Court said:

    There are many elements in the Act as amended that would militate against the continued application of the principles in Cowling, and in particular the passage cited above. 

    While the ultimate goal in the legislation is to provide for an outcome in the best interests of the child, if the presumption in s 61DA applies, then the Court is obliged by

    
    

    s 65DAA to consider the outcomes previously discussed. First, whether the child spending equal time would be in the best interests of the child and whether that is reasonably practicable. Second, if an order to that effect is not made, there is an obligation to consider whether an order that the child spend substantial and significant time would be in the best interests of the child and whether that is reasonably practicable. Section 61DA must be applied in any case, including interim proceedings, where a court is considering making a parenting order.

    The reasoning in Cowling, particularly in paragraph 22 of the reasons for decision to the effect that the best interests of the child are met by stability when the child is considered to be living in well-settled circumstances, must now be reconsidered in light of the changes to the Act, particularly changes to the objects (s 60B), the inclusion of the presumption of equal shared parental responsibility (s 61DA), and the necessity if the presumption is not rebutted to consider the outcomes of equal time and substantial and significant time.

    In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

    That is not to say that stability derived from a well-settled arrangement may not ultimately be what the Court finds to be in the child’s best interests, particularly where there is no ability to test controversial evidence, but that decision would be arrived at after a consideration of the matters contained in s 60CC, particularly s 60CC(3)(d) and s 60CC(3)(m) and, if appropriate, s 60CC(4) and s 60CC(4A). 

18. The pathway for the conduct of interim proceedings was set out by the Full Court in Goode & Goode at paragraph 82. It includes deciding whether the presumption in s 61DA applies and if so, applying s 65DAA and considering the matters in s 60CC. His Honour did not address the matters referred to and, in reliance on Cowling, found that the children had lived under settled arrangements (albeit that the children themselves were not stable and well-settled) and there was no convincing proof that maintenance of the current situation would make their position worse.  For these reasons, his Honour applied an erroneous approach to the proceedings and this ground too must succeed. 

19. The final ground is that his Honour, by continuing with the regime created by Order 1 of the judicial registrar made on 16 May 2006, fell into error by assuming that “the safest thing to do” equated to what was in the best interests of the children.  We need not consider this ground in any detail other than to say that in failing to apply the legislation as described, his Honour fell into appealable error.

20. Accordingly the appeal must succeed.  The orders should be discharged and the matter be remitted for hearing on the interim issue unless a final hearing is imminent.

21. The parties have confirmed that the matter has a listing date of 14 January 2008 and having regard to that we propose to adopt the course of discharging the orders as from 5.00 pm on 14 January 2008. 

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  21 December 2007