Keats & Keats

[2016] FamCAFC 156

FAMILY COURT OF AUSTRALIA

KEATS & KEATS [2016] FamCAFC 156

FAMILY LAW – APPEAL – CHILDREN – Where the father appeals against interim orders concerning time child would spend with him – Where the orders are expressed to be final rather than interim parenting orders – Where orders amended pursuant to s 94(2) of the Family Law Act 1975 (Cth) – Where the grounds of appeal challenge the exercise of discretion, the weight to be given to various factors and application of s 65DAA of the Act – Where the appellant is bound by the conduct of the case before the primary judge – No error demonstrated – Appeal dismissed.

FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – Where the circumstances do not warrant an order for indemnity costs – Appellant to pay the respondent’s costs on a party/party basis.

Family Law Act 1975 (Cth): ss 65DAA, 93A(2), 94(2)

Beckham & Desprez [2015] FamCAFC 247
Bennett and Bennett (1991) FLC 92-191
CDJ v VAJ (1998) 197 CLR 172
Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225
Coulton v Holcombe (1986) 162 CLR 1
Gilles & Irby (2016) FLC 93-687
Goode and Goode (2006) FLC 93-286
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
MRR v GR (2010) 240 CLR 461
Salah & Salah (2016) FLC 93-713
SCVG & KLD (2014) FLC 93-582
SS & AH [2010] FamCAFC 13
University of Wollongong v Metwally(No. 2) (1985) 60 ALR 68

APPELLANT: Mr Keats

RESPONDENT: Ms Keats

INDEPENDENT CHILDREN’S LAWYER: WMD Law

FILE NUMBER: SYC 2268 of 2015

APPEAL NUMBER: EA 93 of 2015

DATE DELIVERED: 16 August 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace, Ryan & Cronin JJ

HEARING DATE: 16 August 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 27 May 2015

LOWER COURT MNC: [2015] FCCA 1595

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Rosic

SOLICITOR FOR THE APPELLANT: Rowlandson & Co Solicitors

COUNSEL FOR THE RESPONDENT: Mr Harper

SOLICITOR FOR THE RESPONDENT: Kyle Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Blackah

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: WMD Law

Orders

1. That pursuant to s 94(2) of the Family Law Act 1975 (Cth), Orders 1 to 9 inclusive made by Judge Henderson on 27 May 2015 be varied to substitute “The court orders that” for “Pending further or other order it is ordered that”.

2. The Application in an Appeal filed on 14 July 2016 to adduce further evidence is dismissed.

3. The appeal against the orders of Judge Henderson made on 27 May 2015 is dismissed.

4. The father pay the mother’s costs of and incidental to the appeal, such costs to be agreed or assessed and paid within twenty-eight (28) days of agreement or assessment.

5. The application for costs by the Independent Children’s Lawyer is dismissed.

NOTATION

A.In order to give clarity to the orders which apply to the parties and to the children by reason of the orders of this Court, Annexure A to these Orders sets out the current interim orders applicable to the parties and the children. 

ORDERS OF THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA

ANNEXURE A TO ORDERS MADE 16 AUGUST 2016

PENDING FURTHER OR OTHER ORDER IT IS ORDERED THAT:

1.The parents shall have equal shared responsibility for the children [Y] born … 1999 and [X] born … 2011.

2.The children shall live with the mother.

3.[X] shall spend time with the father from 3pm Thursday to 6pm Friday commencing 28 May 2015 and continuing each alternate week thereafter.

4.[X] and [Y] spend time with the father as follows:

a.From 9am Saturday to 6pm Saturday commencing 5 June 2015 and continuing each alternate weekend thereafter.

b.On [the child X’s] birthdays if she is not in the father's care, from 3.00pm to 6.00pm.

c.On Father's Day from 4pm on the Saturday before Father's Day to 4pm Father's Day.

d.At Christmas from 3pm Christmas Day until 5pm Boxing Day commencing in 2015 and continuing each alternate year thereafter.

e.At Christmas from 9am Christmas Eve until 3pm Christmas Day commencing in 2016 and continuing each alternate year thereafter.

f.At any other time as agreed between the parties.

5.For the purposes of the father spending time with the children in accordance with these orders the mother shall deliver the children to the father at the maternal grandparents place of residence at the commencement of each period and the father shall return the children to the mother at the maternal grandparents place of residence at the conclusion of each period.

6.The father's time with the children is suspended as follows:

a.In the event the children are in the father's care on their respective birthdays then the mother shall spend time with the children on their respective birthdays from 3pm to 6pm.

b.On Mother's Day from 4pm on the Saturday immediately before Mother's Day 4.00pm Mother's Day.

c.At Christmas from 9am Christmas Eve until 3pm Christmas Day commencing in 2015 and continuing each alternate year thereafter.

d.At Christmas from 3pm Christmas Day until 5pm Boxing Day commencing in 2016 and continuing each alternate year thereafter.

7.That the parents are restrained from:

a.Denigrating the other parent in the presence of or hearing of the children and shall do all things necessary to ensure that children do not hear third parties denigrating the parents.

b.Physically disciplining the children and shall do all things and act necessary to ensure that no third party physically disciplines the children.

c.Discussing these proceedings or the breakdown of the parental relationship with the children, in the presence of the children or causing or permitting any third party to do so.

8.Each party must keep the other informed of his/her current landline, email and mobile telephone number.

9.That the parties notify each other in the event of any illness or injury occurring to the children whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority and direction necessary to enable to other party to obtain all necessary information concerning the children.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Keats & Keats has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 93 of 2015
File Number: SYC 2268 of 2015

Mr Keats

Appellant

And

Ms Keats

Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

1. By Notice of Appeal filed on 24 June 2015 Mr Keats (“the father”) appeals against interim parenting orders made by Judge Henderson on 27 May 2015.  The proceedings were brought by Ms Keats who is the children’s mother (“the mother”). 

2. The mother and the father have three children, two sons namely Z and Y and a daughter, X.  Z is over 18 years of age and lives with the father.  He is estranged from the mother.

3. At the date of hearing, Y was 16 years of age and X was three and a half years of age.  In relation to these children, orders were made for the parties to have equal shared parental responsibility for them, for the children to live with the mother and for them to spend time with the father.  In essence, the father contends that the primary judge should have made provision for the child X to spend more extensive time with him than the orders provide.  As will be discussed shortly, during the hearing, the father relinquished his claim for particular orders as to X in favour of those proposed by the Independent Children Lawyer (“ICL”).  The critical difference between the orders ultimately sought and those made concerning X is that the primary judge made orders for her to spend overnight time with the father once a fortnight rather than, as he sought, at least once a week.

4. An application by the father to adduce further evidence in the appeal which was filed on 14 July 2016 must also be addressed.  By that application, he seeks to introduce a report by Dr A dated 23 October 2015 and an affidavit by the father dated 3 March 2016 in which he deposes to events subsequent to the orders under appeal.  Dr A, who is a child, family and adult psychiatrist, was appointed as a single expert witness to investigate and report on the children’s welfare, the outcome of which is contained in his report. 

5. The mother seeks to uphold the orders and says the application to adduce further evidence should be dismissed.  However, if error is established the mother says the matter should be remitted for a prompt rehearing.  For her part, the mother says there have been significant changes in the children’s circumstances and a further hearing in this court’s original jurisdiction is appropriate.  In March 2016, the proceedings were transferred from the Federal Circuit Court of Australia to the Family Court of Australia.  It is appropriate to record here that had the primary judge not refused the parties’ request in May 2015 for the proceedings to be transferred, the proceedings at first instance would be considerably further advanced.  Although timeliness in transfer is always important, for this family the delay has only compounded their difficulties.  However, returning to the mother’s position before us, as an alternative to the appeal being dismissed she “pragmatically proposes” it be allowed and the proceedings be remitted.  Whether or not an appeal should be allowed is ultimately a matter for the court.  I would not agree to make orders allowing an appeal merely because parties agreed this should happen.  In my view an appeal should only be allowed if the parties establish error by the court below.  As I will shortly explain, in my view, that is not the case here and the appeal should be dismissed.    

6. An ICL has been appointed to represent the children’s interests and argues that the appeal should be allowed.  On that basis, it is submitted that Dr A’s report should be received, as I understood it, to establish error and so that we could re-exercise rather than remit the proceedings.

Orders dated 27 May 2015

1. The father appeals some only of the orders with the effect that, subject to one matter as to the form of the orders, the majority will be undisturbed.  Thus, the parties will continue to have equal shared parental responsibility for the children and the children will live with the mother.  The orders under appeal are set out below:

   …

   3.[X] shall spend time with the father from 3pm Thursday to 6pm Friday commencing 28 May 2015 and continuing each alternate week thereafter.

   4.        [X] and [Y] spend time with the father as follows:

   a.From 9am Saturday to 6pm Saturday commencing 5 June 2015 and continuing each alternate weekend thereafter.

   b.On [X’s] birthdays if she is not in the father’s care, from 3.00pm to 6.00pm.

   …

   5.For the purposes of the father spending time with the children in accordance with these orders the mother shall deliver the children to the father at the maternal grandparents place of residence at the commencement of each period and the father shall return the children to the mother at the maternal grandparents place of residence at the conclusion of each period.

   6.        The father’s time with the children is suspended as follows:

   a.In the event the children are in the father’s care on their respective birthdays then the mother shall spend time with the children on their respective birthdays from 3pm to 6pm.

   …

2. The orders are expressed to be final rather than interim orders. It was agreed that we should rectify this error pursuant to s 94(2) of the Family Law Act 1975 (Cth) (“the Act”). The expression of the orders as final rather than interim orders constitutes an accidental slip manifest from her Honour’s clearly expressed intention. Consistent with the approach adopted by the Full Court in Gilles & Irby (2016) FLC 93-687 at [17]-[18], Orders 1-9 dated 27 May 2015 should be amended by adding the words “Pending further order” and the appeal determined on the orders as amended.

The grounds of appeal

1. There is no challenge to her Honour’s statement of the applicable law, rather, the focus of the appeal is on the application of s 65DAA of the Act and whether her Honour’s reasons were adequate. As with many interim hearings, the proceedings were determined without cross-examination and the primary judge was not in a position to resolve evidentiary controversies. The primary judge applied the principles that emerge from cases such as SS & AH [2010] FamCAFC 13, namely, that apart from relying upon the uncontroversial or agreed facts, a judge may have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected (see also Salah & Salah (2016) FLC 93-713).

2. Turning then to the grounds of appeal. They are as contained in the Notice of Appeal, and as amended by counsel for the father’s Summary of Argument and further amended before us.  The combined effect is the father prosecuted the appeal on the following grounds, namely, that the primary judge erred:

   1.In finding that an order for significant and substantial time as provided by s 65DAA is not in the best interests of the child “[X]” due to her young age, namely three years and six months.

   2.… [abandoned]

   3.… [abandoned]

   4.Making orders that [X] spend one night (from 3.00 pm Thursday to 6.00 pm Friday) each alternate week with the father.

   5.… [abandoned]

   6.Made errors of law which include failure to give adequate reasons.

   7.By departing from the statutory pathway found within Part VII of the Act by finding that an order for significant and substantial time was not in [X’s] best interests.

   8.In not making findings in respect of holiday time sought by the respondent father on the basis that the parties can work it out.

3. It needs to be remembered that this is an appeal against her Honour’s exercise of discretion which is to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. Disagreement by an appellate court only on matters of weight by no means justifies a reversal of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519). In parenting cases, although the views of appellate judges about what is in the best interests of a child may conflict with those of the primary judge, absent legal error or a plainly unjust result, the order of the primary judge must stand (CDJ v VAJ (1998) 197 CLR 172 at 218-219).

The issues at trial

1. In order to understand that materiality of the asserted errors, regard must be had to the extent to which the father now seeks to avoid the consequences of forensic decisions made before the primary judge.  In particular, although the hearing commenced on the basis the father sought orders that during school term the two younger children spend time with him four days each fortnight, half school holidays and on nominated special occasions, his position changed during the hearing and, as was mentioned earlier, in relation to time, he sought orders (about X) in accordance with those proposed by the ICL which are to be found in the minute of order filed during the hearing.  The orders sought are as follows: 

   …

   2.That [X] shall spend time with the father as follows:

   (a)From 9 am Friday to 6 pm Saturday commencing 5 June 2015 and continuing each alternate weekend thereafter

   (b)From 3 pm Thursday to 6 pm Friday commencing 28 May 2015 and continuing in each week thereafter

   (c)On [X’s] birthdays if she is not in the father’s care, from 3.00 pm to 6.00 pm

   (d)On the father’s birthday if it is not a school day from 10 am to 4 pm

   (e)On Father’s Day from 4 pm on the Saturday before Father’s Day to 4pm Father’s Day

   (f)At Christmas from 3 pm Christmas Day until 5 pm Boxing Day commencing in 2015 and continuing each alternate year thereafter

   (g)At Christmas from 9 am Christmas Eve until 3 pm Christmas Day commencing in 2016 and continuing each alternate year thereafter

   (h)At any other time as agreed between the parties

   …

   (ICL’s Case Information, 26 May 2015)

2. Returning to the hearing, the following exchanges are pertinent and illuminate the issues which the primary judge was ultimately asked to determine.

3. At the commencement of counsel for the father’s oral addresses, he said:

   …I’m not going to ask your Honour to concern yourself with what the father wants…

   (Transcript of proceedings, 26 May 2015, p 32)

4. Sometime later, counsel for the father addressed the proposal advanced by the ICL, as follows:

   [ICL]:   One night a week.  I handed up my proposed minute before the break, so it’s proposed that in week 1 it be from 3 pm Thursday to 6 pm Friday, and in week 2, 9 am Friday to 6 pm Saturday, and that that be the only time.  There’s no provision for holiday time or – and there’s other provisions for special events, which I understand both parties ‑ ‑ ‑

   HER HONOUR:   I’m not asking how you come to that, but anyway, I will let Mr Rosic finish his position.

   [Counsel for the father]:   Nonetheless, that doesn’t faintly resemble significant and substantial time.  I’m conscious of ‑ ‑ ‑

   (Transcript of proceedings, 26 May 2015, p 38)

5. Counsel for the father acknowledged the primary judge “might have some reservations about block time” and in closing said:

   [Counsel for the father]:  And I would just ask your Honour to consider the proposal by the ICL – I know that the father has asked for four.  I would have to concede at this point, in my submission, that it’s off the radar, but I would certainly, on the basis of the evidence and the position adopted by the independent children’s lawyer, support her in respect of urging your Honour to consider at least two nights a fortnight.  That would be once a week.  Your Honour could structure it so that [Y] and his sister could go together initially, and [Y] could simply return before his sister goes back, bearing in mind that your Honour has identified, quite correctly, if he doesn’t want to go, he won’t go.  So it can be, to some extent, rather academic until such time as [Y] is ready to go

   (Transcript of proceedings, 26 May 2015, p 60)

6. It follows that the hearing concluded on the basis that it was acknowledged by the father that interim orders which required X to spend time with the father:

   ·for block periods;

   ·four nights per fortnight during school term; and

   ·for substantial and significant time;

   would not be in her best interests.

7. As to the ICL, it was argued that periods longer than one night each week would not be in the best interests of the child. 

Was s 65DAA of the Act misapplied?

1. The grounds of appeal are presented on the basis that the consequences of these forensic decisions can be disregarded.  In this respect, it can be seen that the father in fact reframed the issues which her Honour was required to consider and in my view those forensic decisions cannot now be ignored.  In University of Wollongong v Metwally(No. 2) (1985) 60 ALR 68, the High Court explained the position thus:

   It is elementary that a party is bound by the conduct of his case.  Except in the most exceptional circumstances it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a  new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

   See also Coulton v Holcombe (1986) 162 CLR 1 at 7-8. These principles are fully engaged in this case.

1. There is no doubt that because the parties were to have equal shared parental responsibility, s 65DAA was triggered and thus the primary judge was required to consider whether an order for equal time or substantial and significant time was in the best interests of the children and reasonably practicable, and only if those propositions were answered in the negative, could the question of what outcome promotes the children’s best interests be treated, in effect, as at large (Goode and Goode (2006) FLC 93-286 at [65(8)]).

2. However, in light of the decisions taken during the hearing there was no proposal for an order for equal time or substantial and significant time advanced by the father or the ICL.  Her Honour was thus entitled to proceed on the basis that these types of orders would not be in the best interests of the children and/or reasonably practicable (Beckham & Desprez [2015] FamCAFC 247; SCVG & KLD (2014) FLC 93-582). According to counsel for the ICL these (and similar authorities) were wrongly decided. Asked to explain why, counsel said these cases are inconsistent with the words “must consider” found in s 65DAA. No authority was advanced in support of an alternate interpretation to those which it is said were wrongly decided. In any event the “must consider” argument was rejected in SCVG & KLD. 

3. Although the primary judge in fact explained why, in her view, orders for equal time or orders to spend substantial and significant time with the father would not be in the best interests of the child, in circumstances where the father abandoned his claim for orders of that nature, he should not be permitted to pursue challenges to those aspects of the trial reasons.  On this basis, grounds 1, 7 and 8 should be dismissed.

Were the trial reasons adequate?

1. Grounds 4 and 6 are the only challenges which require further consideration.  These can be distilled to a single point: namely whether or not the trial reasons were adequate, the requirements for which are well known (see Bennett and Bennett (1991) FLC 92-191). In the context of the case as ultimately pressed, the questions raised by these grounds become whether the reasons given for ordering X to spend time with the father every week, including overnight once a fortnight rather than overnight every week, were adequate. Given that these were interim orders and when regard is had to the small difference between the orders proposed and those made, the barriers to a successful challenge to her Honour’s exercise of discretion are considerable.

2. It needs to be understood that this hearing took place in a busy duty list and the primary judge was presented with an extraordinary 340 pages of written material plus seven bundles of documents tendered during the hearing.  Her Honour’s oral reasons for judgment, which were delivered the following day, demonstrate an obvious understanding of the family’s complicated factual history and the arguments made at the hearing.  I am at a loss to understand how that volume of material can be presented in support of an application for interim orders. 

3. The primary judge described the parental relationship as dysfunctional ([2]).  The eldest child, Z, has an Asperger spectrum disorder and Y has an Autism spectrum disorder and Tourette Syndrome.  Y attends a special school and has learning difficulties.  From when the children were born, the mother cared for the children at home and the father worked fulltime.  It was uncontentious that the mother had been primarily responsible for the children’s care.  The father has an attention deficit disorder and Asperger traits and, in 2009, the mother was referred to a psychiatrist for anxiety and depression for which she was prescribed medication.

4. By 2014, the parties’ relationship was in real difficulty and the primary judge described the “home environment … was hostile, aggressive and extremely unsettled” ([36]).

5. In July 2014, Z made the first of numerous attempts to take his life.  Various mental health, welfare and other agencies became involved with the family and following an interview with officers of the Department of Family and Community Services, on 19 September 2014, the mother moved out of the family home taking the younger two children with her.  At the behest of the department, the father agreed to vacate the family home and the mother and children returned.  Notwithstanding the father’s agreement he also returned following which, in October 2014, the mother and children moved into the mother’s parents’ home. 

6. Z was discharged from hospital in October 2014 and returned to the family home and his father’s care.  He is a vulnerable young man, as is Y.  It was common ground that thereafter the parties saw the children by arrangement, albeit the arrangements were fluid and quite fragile.  However, Z decided not to see the mother and although X spent time with the father overnight, this stopped when contrary to the parties’ agreement (in April 2015) the father kept her for five days.  Prior to this hearing the primary judge ordered the father to return X to the mother and made orders for day time contact.

7. It is thus not surprising that at [146] the primary judge expressed her concern that she did not have the benefit of an expert’s report as to the nature of the children’s relationships with their parents and, relevantly, the capacity of the younger child to be away from her primary carer (the mother) for a lengthy period of time.  In this regard her Honour’s concern reflected that of the ICL; which concern underpinned the ICL’s original position that there be no change to the orders for daytime contact until the court had the benefit of expert evidence.  

8. Her Honour went on and observed that each of the children had been exposed to verbal abuse in their parents’ home and both parents had limited insight into the impact of this behaviour on the children, albeit the mother’s insight appeared to be greater than was the father’s ([152]).  Notwithstanding this, there was no evidence X had been harmed during periods of overnight time in the father’s care.  The mother’s evidence concerning lack of hygiene in the father’s home could not justify a restriction on overnight time.

9. However, the family had been through a great deal of change and X was now having daytime contact with the father.  The primary judge was very concerned about the effect of further change on X “particularly in this unsettled time when there had been toing and froing” ([148]) and when she was still very young.  It is apparent that these factors were afforded significant weight, and according to counsel for the ICL too much weight.  As I have already explained, disagreement merely as to matters of weight by no means justifies appellate intervention.  Counsel for the ICL was unable to explain why it would in this case.

10. Thus, the primary judge adopted a cautious approach to the amount of time X should spend with the father.  In this regard, the primary judge, as my overview of her reasons would reveal, did not overlook relevant considerations or take into account considerations which could be regarded as irrelevant.  Otherwise, given that the father did not seek orders to gradually increase X’s time with him, he cannot now complain that the primary judge erred in failing to make orders of this type. 

11. I am satisfied the trial reasons expose her Honour’s process of reasoning and are adequate.  It follows that the argument advanced by counsel for the ICL that the primary judge refused overnight time primarily because she was concerned the mother needed time to recover from domestic violence and a coercive and controlling relationship cannot be accepted ([154]).  In this regard, the primary judge did no more than acknowledge one aspect of the mother’s case and when these remarks are read in context of the significant factors referred to above, it is clear that the greatest weight was placed on her Honour’s remarks at [146] and [148].   

12. The father has not made out a case for appellate intervention.

The application to adduce further evidence

1. The circumstances in which the Full Court can receive further evidence on an appeal pursuant to s 93A(2) of the Act are considerably constrained as discussed in CDJ v VAJ. The principal purpose of s 93A(2) is to give the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. One need only read the single expert report and the affidavit upon which the father would rely to appreciate the factually rich and controversial nature of the evidence sought to be introduced to appreciate that its admission would impermissibly blur the distinction between original and appellate jurisdiction. I would refuse the application to adduce further evidence.

2. In my view, in addition to the orders which rectify the record, I would therefore make orders:

   1.That the Application in an Appeal filed on 14 July 2016 be dismissed.

   2.The appeal be dismissed.

Cronin J

1. I agree with the orders proposed by Ryan J and the reasons for them.

Ainslie-Wallace J

1. I too agree with her Honour’s reasons and the orders she proposes and therefore the orders of the court will be as follows:

   1.The application to adduce further evidence in the appeal filed on 14 July 2016 is dismissed.

   2.The appeal against the orders of Judge Henderson made on 27 May 2015 is dismissed.

   3.Orders 1-9 of the orders made on 27 May 2015 be amended by adding the words “Pending further order or other order it is ordered that”.

Costs

Ainslie-Wallace J

1. I do not propose to make an order for indemnity costs.  In my view, it is not a case that engages the principles in Colgate-Palmolive Co and Anor v Cussons Pty Ltd (1993) 46 FCR 225. An order for party/party costs against the father is appropriate and an order should be made that those costs be agreed or assessed and payable within 28 days of any agreement or assessment.

2. The basis for that is that the father’s appeal has been wholly unsuccessful and I am not satisfied that there is any financial bar to making a costs order. 

Ryan J

1. I agree that the application for indemnity costs should be dismissed and the father should pay the mother’s costs.  I would also dismiss the application for costs made by what must be described as the unsuccessful ICL.

Cronin J

1. I also agree.

Ainslie-Wallace J

1. Therefore, the further orders of the court will be:

   1.That the father pay the mother’s costs of and incidental to the appeal, such amount to be agreed or assessed and paid within twenty-eight (28) days of any agreement or assessment.

   2.The application for costs by the Independent Children’s Lawyer is dismissed.

I certify that the preceding forty three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie-Wallace, Ryan & Cronin JJ) delivered on 16 August 2016.

Associate:     

Date:  17 August 2016