Kearney & McMaster
[2024] FedCFamC1A 2
•24 January 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kearney & McMaster [2024] FedCFamC1A 2
Appeal from: Kearney & McMaster [2023] FedCFamC2F 1081 Appeal number: NAA 262 of 2023; NAA 335 of 2023 File number: CAC 2574 of 2020 Judgment of: CHRISTIE J Date of judgment: 24 January 2024 Catchwords: FAMILY LAW – APPEAL – Procedural fairness – Where the appellant asserts that the primary judge’s making of an order for the immediate commencement of unsupervised time was a denial of procedural fairness – Ambit of the litigation framed by the parties – Where the primary judge significantly deviated from the ambit of the dispute as defined by the parties such that it constituted a denial of procedural fairness – Where the denial of procedural fairness is dispositive of the outcome of the appeal – Adequacy of reasons – Where the inadequacy of the primary judge’s reasons informs the determination that there was a denial of procedural fairness – Where the reader of the reasons is not aware to what extent events of significance informed the parenting orders or approach to the safeguards which were sought as preconditions to unsupervised time – Where the primary judge’s reasons do not reveal any analysis of whether the primary judge accepted or rejected the appellant’s argument that the respondent’s conduct would place the children at risk – Appeal allowed – Matter remitted for rehearing – Costs certificates issued. Legislation: Family Law Act 1975 (Cth) ss 69ZT, 69ZW, 102NA Cases cited: Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 36
Guthrie & Guthrie (1995) FLC 92-647
Lenova & Lenova (2011) FLC 93-467; [2011] FamCAFC 114
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Robertson & Sento [2009] FamCAFC 49
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
U v U (2002) 211 CLR 238; [2002] HCA 36
Number of paragraphs: 55 Date of hearing: 18 January 2024 Place: Sydney (via Microsoft Teams) Counsel for the Appellant: Mr Howard Solicitor for the Appellant: Parker Coles Curtis Solicitor for the Respondent: Litigant in person Independent Children's Lawyer: McGregor Family Law ORDERS
NAA 262 of 2023
NAA 335 of 2023
CAC 2574 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS KEARNEY
Appellant
AND: MR MCMASTER
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
24 JANUARY 2024
THE COURT ORDERS THAT:
1.Appeal NAA335/2023 is withdrawn and dismissed.
2.Appeal NAA262/2023 is allowed.
3.Orders 5–11, 13–17, 20, 24 and 33 of the orders dated 25 August 2023 are set aside.
4.The matter is remitted to a judge of the Federal Circuit and Family Court of Australia (Division 2), other than the primary judge, for rehearing.
5.The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 in respect of the costs incurred by her in relation to Appeal NAA262/2023.
6.Each of the parties is granted a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
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 a pseudonym Kearney & McMaster has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
These reasons relate to two appeals – the first of which appeals against orders of a Federal Circuit and Family Court of Australia (Division 2) judge and relates to final parenting orders and the second of which appeals against the subsequent order of the same judge dismissing the appellant’s application for a stay. At the hearing of the appeal, the appellant withdrew the Appeal in respect of the refusal to grant a stay on the basis I indicated that I would be in a position to make orders and deliver reasons in the substantive appeal on or before 25 January 2024.
The appellant’s Notice of Appeal is not directed to all of the orders of the primary judge but rather towards:
(a)Orders 5-11 which relate to the father’s time with the parties’ younger child, conditions relating to time and gradual increase in time;
(b)Orders 13-17 which relate to changeover arrangements and time in school holidays and on special occasions;
(c)Order 20 which relates to communication between the children and the parents;
(d)Order 24 which permits both parents to attend at school or extra curricular activities of the children; and
(e)Order 33 which restrains both parties from consuming alcohol in excess of the legal driving limit if the children were in their care.
For the reasons which follow, the appeal against the parenting orders will be allowed.
THE TRIAL
The primary judge heard and determined contested parenting proceedings relating to two children aged 15 and 11 as at the time of the hearing. The parties were not in issue that the older child should spend time with the respondent in accordance with her views and accordingly, the appeal relates to the orders which provide for time between the younger child and the respondent.
The primary judge set out the relevant background in the reasons at [4]:
First, in 2018, the parties agreed upon an equal time arrangement in relation to both children, commencing in 2019. Secondly, the co-parenting relationship between the parties has declined markedly in recent years. Thirdly, one incident of family violence in particular involving the Father but which impacted upon [now] 11 year old [Y] was a relevant “trigger” for the 2018 Orders to be re-visited. Fourthly, a number of other instances of family violence have shown a degree of semi-regular volatility on the father’s part, notably when under stress, fatigue and/or frustration of one kind or another. Fifthly, in my view, a central issue or feature of this litigation is that the regularly self-represented Father is his own worst enemy…
At the hearing, the mother sought orders for the younger child’s time with the father to be supervised and subject to conditions which required alcohol testing and the completion of anger management type programs.
The father sought orders which provided for equal time but conceded ultimately that he would be prepared to agree to a graduated regime which arrived at the child spending no less than five nights in his care in a fortnightly arrangement. The father accepted that completion of an anger management course be a prerequisite to time commencing.
The Independent Children’s Lawyer (“ICL”) sought orders which provided initially for supervised time which would become unsupervised if the father undertook tests and completed an anger management course.
The primary judge made the following orders:
5. Commencing immediately, [Y] shall spend time with the Father one day each alternate weekend from 9:00am to 5:00pm, unless otherwise agreed in writing between the parties.
6. Upon request by the Independent Children’s Lawyer at any time, but on no more than one occasion per calendar month over a 3-month period, the Father shall, within 48 hours of such request, undertake supervised urinalysis drug and alcohol screen testing (“the testing”):
(a) with such testing to occur at a pathology centre or other place approved by the Independent Children’s Lawyer and in accordance with the Australian/New Zealand Standard applicable to the procedure for the collection, detection and quantitation of drugs of abuse and alcohol in urine;
(b) the Father is to bear the cost of the testing; and
(c) the results of the testing, on each occasion, be forwarded, as soon as possible, to the Independent Children’s Lawyer and the Mother.
7. Upon compliance with Order 6, and receipt of results showing no illicit substance use or excessive alcohol use within a 3-month period, Order 5 is discharged and [Y] shall spend time with the Father each alternate weekend from 10:00am Saturday to 4:00pm Sunday.
(a)In the event the Father does not comply with Order 6 herein, Order 5 will remain in effect until such time as the Father can provide the Independent Children’s Lawyer and the Mother with results showing no illicit substance use or excessive alcohol use over a 3-month period.
8.Following the commencement of time arrangements in Order 7, the Father engage and complete 2 parenting courses from the following list:
(a) [QQ Program]; and/or
(b) [RR Program]; and/or
(c) [SS Program].
In the alternative, the Father provide evidence to the Independent Children’s Lawyer and the Mother of his enrolment and 6 months of attendance in the [NN program] course or a recognised Anger Management Course addressing the same issues and of similar duration.
As is plain, the orders did not impose any obligation on the father to undertake an anger management course as a prerequisite to the commencement of time (or at all).
There are some relevant and non-controversial matters relating to the conduct of the trial which are relevant to the appeal as follows:
(a)The father gave evidence and was cross-examined. On the third day of his cross-examination, the father indicated he did not want to continue being cross-examined and his cross-examination concluded.
(b)The father’s lawyers, appointed pursuant to s 102NA of the Family Law Act 1975 (Cth) ("the Act”), withdrew and the father acted for himself from that point with some assistance from those lawyers.
(c)The father’s partner, Ms D, who had sworn affidavits and was present was not cross-examined but (curiously) was permitted by the primary judge to make an unsworn oral statement.
(d)The Court Child Expert was not cross-examined.
THE APPEAL
Ground 4 is framed as a ground which raises considerations of procedural fairness and accordingly, consistent with principle, I am considering it first.
Ground 4
The ground is expressed as follows:
4. That the trial judge denied the appellant procedural fairness in relation to:-
a.his decision to order that the father have time with the child [Y] commencing immediately on each alternate weekend from 9 AM to 5 PM on an unsupervised basis; and
b.his decision not to take into account in any way the father’s failure to allow cross examination of himself to be completed.
The appellant contends that the making of an order for the immediate commencement of unsupervised time was a denial of procedural fairness because it was an order outside the ambit of the litigation as framed by the parties.
The appellant submits that this order was not in contemplation since even the respondent took the position that he would be prepared to complete an anger management course (of his choosing) prior to the commencement of time.
It is well accepted that a trial judge is not bound by the proposals of the parties (U v U (2002) 211 CLR 238 at [80]). However, it is settled law that it will be an error if the primary judge represents to the parties that a certain order is not in contemplation but then makes that order without affording an opportunity for the parties to make submissions in respect of it (see Bolitho and Cohen (2005) FLC 93-224 at [85]; Lenova & Lenova (2011) FLC 93-467 at [55]; Robertson & Sento [2009] FamCAFC 49 at [138]).
The authorities emphasise that the role of the primary judge as the judicial decision maker responsible for making a best interests determination may from time to time require that judge to look beyond the proposals of the parties, not in an “unfettered manner”, but in the context of the evidence in the proceedings as a whole and hence it is important to turn to the evidence about the father’s position.
The mother had a full opportunity to make submissions about the father’s position which was that he “denies that he has anger management or behavioural issues beyond any ordinary member of society”. He submitted “it is unwarranted to mandate his participation in anger management courses” but said he should spend unsupervised time with the child on completion of an online anger management course which he asserted was more appropriate than a face-to-face course given “his lack of ability to read and write”.
The primary judge did not explicitly engage with the father’s preparedness to undertake the course of his election and proceeded to make an order which provided “[c]ommencing immediately [Y] shall spend time with the Father one day each alternate weekend from 9:00am to 5:00pm…”
The mother submits that since both parents and the ICL had sought attendance at an anger management course as a prerequisite to the commencement of unsupervised time, the primary judge’s failure to make such an order is a denial of procedural fairness.
In my view, while the ground is framed as raising questions of procedural fairness, it is, as appellant’s counsel accepted, also properly understood as a failure on the part of the primary judge to give reasons for making an order for immediate unsupervised time.
To the extent that the ground contended as a denial of procedural fairness the asserted failure on the part of the primary judge to “take into account in any way the father’s failure to allow cross examination of himself to be completed”, I do not accept that this is indicative of a denial of procedural fairness.
The primary judge certainly acknowledges the father’s decision to end his cross- examination:
90.When asked whether the Father had had time with the children during this period, the Father said that he had been refused any time with the children. The Father was asked to again answer this question. It was at this point the Father’s emotions became heightened, and he subsequently left the Courtroom. It is acknowledged that the Father was significantly fatigued, advising the Court he had worked an 11 hour shift the night prior. A short adjournment was granted to enable the Father’s legal representatives to attempt to seek instructions from the Father.
91.Upon return, the Father’s legal representatives sought leave to withdraw from the matter advising that the instructions they were receiving from the Father were ‘difficult’. The Court was advised the Father wished to make comments to the Court about the course forward for the matter. The Father returned to the Court room and advised the Court that he held an Affidavit from Ms [D] that she wished the Court to read. The Father further advised that he was mentally drained from this experience, and did not understand why Counsel for the Mother had sought to ‘drag out’ the cross-examination of him for over two days.
92.The Father said that he would abide by whatever decision the Court made but that he did not wish to continue to be cross examined, having been previously cross examined for one whole day earlier in the trial. He said that Ms [D] still wished to give evidence. The Father also advised that he had no questions to ask of the Family Report writer.
(Footnotes omitted)
The primary judge at [131] returns to mention the father’s “periodic outbursts of aggression, domestic violence frustration and a degree of unpredictability when fatigued, frustrated or worse”.
The second complaint is not one of denial of procedural fairness but rather whether the primary judge gave no weight to a relevant factor or gave insufficient weight to a relevant factor.
However, the failure on the part of the primary judge to raise with the parties:
(a)His intention to make an order for immediate unsupervised time; and
(b)His intention to make the father’s attendance at an anger management course optional
so as to allow them to make submissions, constituted a denial of procedural fairness. I accept the submission on behalf of the appellant that those two factors constitute a significant deviation from the ambit of the dispute as defined by all parties: see Guthrie & Guthrie (1995) FLC 92-647.
While I accept that not all denials of procedural fairness will require an appeal to succeed, I am persuaded that the facts and circumstances of this case are such that the denial of procedural fairness is dispositive of the outcome of the appeal. It follows that the appeal should be allowed on this basis. Notwithstanding this conclusion, I have considered Ground 1 since my consideration of the matters raised under that ground have informed my decision that the principles in Stead v State Government Insurance Commission (1986) 161 CLR 141 are not in play in this case.
Ground 1
The ground is articulated as follows:
1.That the trial judge gave no, or inadequate, reasons in relation to the following:-
a. his determination that unsupervised time between the child [Y] and his father should commence immediately;
b.his determination that the time to commence immediately between the child [Y] and his father should be from 9 AM to 5 PM on a weekend day every 2nd weekend;
c.his determination that the time the child [Y] was to spend with his father should ultimately progress to 5 nights per fortnight;
d.as to why the father was given a choice about which course/courses he needed to complete;
e.[Abandoned]
f.the assessment of risk and how that risk would be managed in the orders that he was making;
g.why the Appellant’s proposed Orders 14(b) and (f) and Order 20 were not made;
h.why no orders relating to special occasions were made, save for Mother’s Day and Father’s Day, although both the Appellant and Respondent proposed such orders be made;
i.noting that the trial judge indicated that he considered that the orders proposed by the Independent Children’s Lawyer were “generally” in the best interests of the children, the basis for any changes to those proposed orders; and
j.as to why Order 33 imposes restrictions on the mother’s alcohol consumption.
As is clear, Ground 1 asserts inadequacy of reasons. The case law emphasises that adequacy is a term which must be understood in the context of the issues which are being determined.
It is accepted that the law in respect of adequacy of reasons in a discretionary judgment is that articulated by Gray J in in Sun Alliance Insurance Ltd v Massoud (1989) VR 8 and applied in Bennett and Bennett (1991) FLC 92-191:
The adequacy of the reasons will depend upon the circumstances of the case. But the reasons will in my opinion, be inadequate if:
(a)the appeal court is unable to ascertain the reason upon which the decision is based; or
(b) justice is not seen to have been done.
The two above stated criteria of inadequacy will frequently overlap. If the primary Judge does not sufficiently disclose his or her reasoning, the appeal court is denied the opportunity to detect error and the losing party is denied knowledge of why his or her case was rejected.
While there are a number of sub-grounds set out, the central challenge relates to the question of whether the primary judge’s reasons adequately address the significance of the evidence concerning family violence and its impact on the child and potential future risk (subground (f)).
The primary judge accepted that there had been a history of family violence between the parents prior to and immediately following their separation. The evidence at trial was significantly focused on charges which had been brought against the father arising from an incident between the father and his current spouse which occurred in September 2020.
The father pled guilty to two charges arising out of the incident and the amended Statement of Facts upon which he entered the guilty plea was in evidence before the primary judge.
It recorded:
The Defendant had been drinking [alcoholic pre-mixed drinks] and [spirits] from the bottle. The Defendant was yelling at Ms [D], accusing her of cheating. The Defendant called her a “slut” and accused Ms [D] of driving “his daughter out of his life:.
Fearing for her safety, Ms [D] ran upstairs to the master bedroom and locked the door. The Defendant followed her upstairs and started kicking and punching the master bedroom door causing the door to open. The Defendant entered the master bedroom. [Redacted]. The Defendant [redacted] picked up a [small electrical item] and tried to hit Ms [D] with it. Ms [D] pushed the Defendant away from her and the Defendant then smashed the [small electrical item] on the bedside table, breaking the [small electrical item]. Ms [D] informed the Defendant she would pack her things and leave the house. The Defendant left the master bedroom and went downstairs to the kitchen.
Ms [D] began packing her belongings. [Redacted]. Ms [D] [redacted], grabbed her bag and car keys, and ran out of the master bedroom down the stairs and toward the front door.
[Redacted]
Ms [D] got away from the Defendant and "legged it”, as she later described to Police, out of the house to her car and drove down the road. [Y] remained in the residence.
The Court had before it the amended Statement of Facts, the affidavit of the father and the affidavit of Ms D, together with cross-examination of the father (albeit incomplete). The reasons for judgment do not make reference to any findings about which account (if any) of this event the primary judge accepted. This is compounded by the primary judge’s conclusions at [130]:
…The evidence of Ms [D], on the other hand, which is no formal criticism of her, cannot be given much weight at all. Her unsworn comments from the witness box cannot be given the same weight had there been proper cross examination of her.
Firstly, it is not plain what regard the primary judge had to Ms D’s sworn evidence as evidence untested by cross-examination. It is difficult to understand what “cannot be given much weight at all” means since the blanket statement does not refer to her evidence about the events of September 2020. Further, the primary judge’s reference to the weight to be attached to her unsworn statement seemingly fails to appreciate that an unsworn statement is, notwithstanding the provisions of s 69ZT of the Act, of such limited value where there are serious questions of fact to be determined that its receipt in this case, without apparent scrutiny, compounds the error. The references by the primary judge and counsel to this unsworn statement as “submissions”, not evidence, is equally problematic since submissions are generally received from parties, not witnesses, and are theoretically grounded in the admissible evidence.
The above observations are significant because the question of a risk to the children arising out of exposure to family violence, in particular between the respondent and his current spouse, was at the centre of the dispute between the parties. The respondent and Ms D downplayed the incident of September 2020 as both isolated and exaggerated. The documents tendered in the mother’s case, to which no reference was made in the reasons for judgment, place this characterisation significantly in issue.
The Child Youth and Protection Service (“CYPS”) produced documents to the Court pursuant to an order made under s 69ZW of the Act. Those documents included a report which reads:
DV throughout relationship which commenced around 2014. Mother ([Ms UU]) previously sustained physical injuries as a result. Significant damage in the home caused by the father. [E] (2 yrs) has previously contacted his MGF via facetime asking his pop to pick him and his mum up because he is scared of his dad. There was a recent incident in which [E] dropped an ipad and in response his father smashed the ipad because he was angry…Mother is back in the home, but reporter believes mother plans on allowing the father back in the home once this is allowed…Reporter believes they are still in a relationship and mother not planning ending the relationship. In terms of the injuries, reported stated mother sustained an injury to her neck and was checked out by paramedics but refused to attend hospital. Report believes father is very controlling. Father was looking through the mother’s phone accusing her of cheating which prompted the recent incident.
(As per the original)
The records from CYPS which were before the primary judge also contained records of Ms D informing the Australian Federal Police and Director of Public Prosecutions that she would not call the police if there were to be an incident in the future. It is not plain that the primary judge considered this evidence when making an assessment of the risk to the children of the time in the father’s care without appropriate safeguards.
In addition, the Court received evidence from a legal practitioner that the father had been heard on 26 August 2022 to say: “fuck the system, kill the bitch” during a telephone conversation between that legal practitioner and the father’s partner. At [138] of the reasons for judgment, the primary judge records “I do not need to make any formal finding in relation to who actually made the threat to kill”. What was required was for the primary judge to make a finding about whether the father made the threat (if the evidence allowed him to so do) and weigh the significance of this for the parenting orders if he could be confident the father had made the threat. If the primary judge was unable to safely conclude that the father made the threat but remained concerned about the possibility that that is what had occurred, it would have been reasonable and consistent with authority to weigh the significance of a threat in those terms being made during a telephone call with the father’s partner in the context of the litigation, in terms of whether the evidence as a whole supported an unacceptable risk of future harm. The difficulty with the primary judge’s approach is that, apart from reciting the evidence and recording “significant disquiet and concern”, the reader of the reasons for judgment is not aware to what extent this has informed the parenting orders or the approach to the safeguards which the ICL and mother sought as preconditions to unsupervised time.
In Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110, McColl JA (with the concurrence of the other members of the bench) said:
58.The extent and content of reasons will depend upon the particular case under consideration and the matters in issue. While a judge is not obliged to spell out every detail of the process of reasoning to a finding, it is essential to expose the reasons for resolving a point critical to the contest between the parties.
59.The reasons must do justice to the issues posed by the parties' cases. Discharge of this obligation is necessary to enable the parties to identify the basis of the judge's decision and the extent to which their arguments had been understood and accepted … it is necessary that the primary judge “‘enter into’ the issues canvassed and explain why one case is preferred over another”.
(Citations omitted)
The children’s time with the father ceased at the time of the serious incident set out above. While the primary judge appeared to accept the seriousness of what occurred, the reasons for judgment do not reveal any analysis of whether the judge accepted or rejected the argument of the mother that the father’s conduct would place the children at risk.
This lacuna in the reasons is more significant because of the unchallenged expert evidence of the Court Child Expert which included the following opinions:
126.[…] There is no indication that Mr [McMaster] has attempted to address either anger or emotional regulation issues, over time, suggesting that Mr [McMaster] has not considered the impact of his behaviour on other people, including the children. Ms [D] presents as being supportive of Mr [McMaster] (including his behaviour) leaving the children potentially vulnerable to abuse, including verbal or psychological abuse if she is not able to recognise or mitigate inappropriate behaviour perpetrated by Mr [McMaster] […]
…
131.Each child […] has expressed a wish to again spend time with Mr [McMaster] and his family which needs to be considered from the perspective of keeping the children safe.
The Court Child Expert’s recommendations were that initial time be supervised.
In the primary judge’s reasons for judgment at [131] he says:
The final observation to record here is that, given the priority both under the Act and according to much authority, the Court’s protective responsibilities are quite to the fore here. I say that, less because of any formal risk to the children from the Father’s periods of volatility (although [Y] has witnessed it first hand, as recounted above), but simply because of the events set out in the course of these reasons, which attest to the Father’s periodic outbursts of aggression, domestic violence and a degree of unpredictability when fatigued, frustrated or worse.
It is not plain what is intended by the phrase “less because of any formal risk to the children”. It seems only capable of being understood as a conclusion that the father’s conduct does not pose a formal risk to the children and the primary judge is making reference to the statutory obligation to act protectively given the evidence about family violence but does not set out how the orders to be made address the risk (perhaps because he has concluded that there is no “formal risk”).
The ICL’s Minute of Order (which the primary judge purported to adopt with amendments) sought protective conditions before the introduction of supervised time. The primary judge was not obliged to slavishly adhere to that Minute but he was obligated to consider it, especially in light of the expert evidence and, if he chose to make orders which departed from it, explain why such orders:
(a)were in the best interests of the children; and
(b)addressed the risks identified by the evidence.
It is not the failure by the primary judge to make orders for supervised time or his failure to order that the father complete an anger management course which is the error but rather the failure to explain by way of the reasons for judgment why, in his view, supervision and the anger management course were not necessary protective orders given his findings.
The inability to ascertain the extent to which the primary judge has assessed the father’s conduct from the perspective of future risk to the children is a fundamental error and the appeal must succeed.
Given this conclusion, it is not necessary for me to address the various other sub-grounds set out in Ground 1 (except sub-ground 1(j)) nor the remaining grounds of appeal.
I will separately address sub-ground 1(j) since the appellant appeals against Order 33 on the basis that the primary judge has failed to give any reasons for making an order which would restrict the appellant’s alcohol use. In circumstances where the trial judge made no findings about the mother’s use of alcohol and gives no reasons for making the injunction, the appeal against Order 33 should succeed.
COSTS
The appeal has been allowed and the appellant sought a certificate under the Federal Proceedings (Costs) Act 1981 (Cth).
The appeal has succeeded on a question of law and I am of the view that this is a matter in which it is appropriate that the appellant have the benefit of a certificate in respect of the appeal and any rehearing.
Being self-represented at the appeal, the respondent incurred no legal costs and so it is not necessary for him to be granted a costs certificate for the purposes of the appeal. However, the appeal having been allowed, it is appropriate for the respondent to be granted a costs certificate in respect of any rehearing.
The ICL did not wish to be heard on the matter of costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 24 January 2024
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