KETTLE & GREEN
[2014] FamCAFC 98
•13 June 2014
FAMILY COURT OF AUSTRALIA
| KETTLE & GREEN | [2014] FamCAFC 98 |
| FAMILY LAW – APPEAL – CHILD SUPPORT – Presumptions of parentage – Where father completed statutory declaration that the child is his – Where after years of litigation and after child turns 18, father seeks to put paternity of child in issue – s 69S presumption of parentage arising from findings of courts is operative presumption – Where father cannot press for relief predicated upon s 69P presumption of parentage arising from marriage – Where father sought repayment of child support – Where relief pursuant to s 143 of the Child Support Assessment Act 1989 (Cth) is conditional upon declaration pursuant to s 107 of the Child Support Assessment Act 1989 (Cth) that the person should not be liable to pay child support – Where father’s application summarily dismissed – No error established. FAMILY LAW – APPEAL – INJUNCTION AGAINST INITIATING PROCEEDINGS – Whether order restraining father instituting proceedings validly made – Where the decision of a superior court, even if in excess of jurisdiction, is valid unless and until it is set aside – Whether pursuant to s 118 of the Family Law Act 1975 (Cth) or s 143B of the Child Support Assessment Act 1989 (Cth), order valid – No denial of procedural fairness established. FAMILY LAW – APPEAL – PRACTICE & PROCEDURE – Where response filed electronically – r 24.07 (filing by email and internet) considered – No error established – APPEAL DISMISSED. FAMILY LAW – COSTS – Father to pay mother’s costs of appeal. |
| Child Support Assessment Act 1989 (Cth): ss 100, 107, 143, 143B Family Law Rules 2004 (Cth): rr 4.20, 10.12, 10.14, 24.07 |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | Mr Kettle |
| RESPONDENT: | Ms Green |
| FILE NUMBER: | BRC | 6527 | of | 2009 |
| APPEAL NUMBER: | NA | 62 | of | 2013 |
| DATE DELIVERED:: | 13 June 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Thackray, Ryan and Aldridge JJ |
| HEARING DATE: | 27 May 2014 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 October 2013 |
| LOWER COURT MNC: | [2013] FamCA 913 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Kettle appeared in person |
| COUNSEL FOR THE RESPONDENT: | Ms Ellis |
| SOLICITOR FOR THE RESPONDENT: | Burchill & Horsey Lawyers |
Orders
The appellant’s application in an appeal filed on 17 March 2014 be dismissed.
The appellant’s appeal NA 62 of 2013 against the orders of the Honourable Justice Cleary made on 14 October 2013 be dismissed.
The appellant father pay the respondent mother’s costs of and incidental to the appeal, such costs to be agreed, or failing agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kettle & Green has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 62 of 2013
File Number: BRC 6527 of 2009
| Mr Kettle |
Appellant
And
| Ms Green |
Respondent
REASONS FOR JUDGMENT
This is an appeal by Mr Kettle (“the father”) against orders made by Cleary J on 14 October 2013 which dismissed his application filed on 27 March 2013 with costs. As our discussion of the merits of the appeal will reveal, the father was required to apply for leave to appeal. Although he did not, we will deal with his appeal on the basis that if appellate error is established, leave will be given.
The father’s application concerned the payment of child support by him and paternity of the child who was born to Ms Green (“the mother”) in 1994. While both parties were married to other people, they had a sexual relationship as a consequence of which it is common ground that the father could be the child’s father. When the child was five months old, on a document entitled “Statutory Declaration that a person is the father of a child”, the father declared that he is the child’s father.
Fast forward through years of litigation in this court and the Federal Circuit Court, on 4 November 2011, periodic and lump sum child support departure orders (“the orders”) were made in the Federal Circuit Court. By those orders the father was ordered to pay child support for the child in the amount of $195 per week, which amount was backdated and capitalised, to when the child turned 18, at $13,650. Similar orders were made in relation to the child’s sister. The capitalised sum was to be paid to the Child Support Registrar who, from that amount, was directed to pay the father’s monthly child support liability on an ongoing basis. In the event the father failed to deposit the capitalised sum with the Child Support Registrar, various parcels of land which the father owned vested in a named trustee. That trustee was authorised to sell the land and, after payment of transaction costs:
a)to pay any arrears of child support accrued prior to 4 November 2011;
b)the capitalised child support which was to be disbursed to the mother monthly;
c)in payment of a series of orders for costs made against the father; and
d)the balance remaining to the father.
The orders have not been varied or set aside.
With all proceedings between the parties finalised, on 27 March 2013, the father filed the application which is the subject of this appeal. The orders sought will be set out shortly. However, it should be noted at this stage, that the father did not seek the court’s leave to file this application. Leave was necessary because on 2 April 2008 Warnick J made an order which restrained the father from instituting proceedings under the Family Law Act 1975 (Cth) (“the Act”) about or related to child support. The effect of s 100 of the Child Support Assessment Act 1989 (Cth) (“the Assessment Act”) is that the restraint against the commencement of proceedings also applied to proceedings under the Assessment Act and hence this application. Notwithstanding the leave issue had not been addressed, the father’s application was listed for an interim hearing before the primary judge on 14 October 2013 and was dismissed.
The mother resists the appeal and seeks to uphold the orders of the primary judge.
The father also filed two applications in an appeal, the first on 17 March 2014 and the second on 13 May 2014. By the first application the father, in effect, sought to review the decision of the Appeals Registrar to exclude various documents from the appeal books. The second application sought that the court provide a transcript of the proceedings before the primary judge and other orders we could not make.
The transcript of the proceedings was released to the parties the day prior to the appeal hearing. That issue having been resolved, for reasons given during the hearing, the balance of the father’s application in an appeal filed 13 May 2014 was dismissed.
The father’s application considered by the primary judge
The orders sought by the father in his application in a case filed 27 March 2013 are set out below:
1.The Respondent mother is ordered to obtain suitable forensic evidence to rebut the presumption in Section 69P(1) of the Family Law Act with regard to [the child].
2.If the presumption in Section 69P(1) is not rebutted by Evidence within four months of this Order or such other time as this court may on Application determine, then the Applicant is Declared to be not the father of [the child] and an accounting of all Child Support monies paid in relation to [the child] is to be conducted by the Child Support Agency and the Applicant is, upon such a Declaration by the Child Support Agency of the total monies paid by the Applicant in relation to Child Support for [the child] those monies are to be, by authority of this Order, at Law recoverable by the Applicant as against the Respondent mother.
3.Should, by the operation of Order 2 hereof, the Applicant be found to not be the father of [the child], then indemnity costs or, on the election of the applicant, a lump sum for costs and disbursements to be determined in the discretion of this court shall become payable by the Respondent mother to the Applicant.
4.Should the above forensic Evidence not determine the issue of [the child’s] paternity, the matter may be brought on for further orders on 14 days notice.
Background facts
The child was born in 1994.
On 24 December 1994 the father signed a statutory declaration that he is the child’s father.
The parties’ second daughter was born in 1999.
It would appear that the first administrative assessment of child support in relation to the child was issued by the Child Support Registrar on 28 September 2002.
Thereafter, various applications concerning child support, parenting orders and associated applications, and appeals were brought by the parties. Rather than include a lengthy chronology of those matters in these reasons, it is sufficient to refer to the litigation history and history of dealings with the Child Support Agency set out in Kettle & Baker & Green(Interlocutory Appeals) [2010] FamCAFC 77 and Kettle & Baker & Green [2009] FamCAFC 113 and to otherwise refer to specific events where necessary.
From that chronology it is revealed that on 7 July 2009 the Full Court made orders concerning five appeals filed by the father, including appeals against child support departure orders made by Bell J on 24 November 2006. On appeal the father achieved a measure of success, the effect of which was that the child support orders made by Bell J were set aside and the mother’s child support departure application filed on 14 October 2004 was remitted for rehearing. Having been remitted, the proceedings were transferred to the Federal Circuit Court where they were ultimately determined by Federal Magistrate (now Judge) Jarrett.
So that it is clear, after the proceedings were transferred to the Federal Circuit Court, the mother filed an amended departure application which is the application upon which she relied before Jarrett FM. The father contends that because the proceedings were remitted to the Family Court it was not open to that court to transfer the remitted application or for either court to consider any application other than the mother’s departure application filed on 14 October 2004. We observe provision is made in the Federal Circuit Court Rules 2001 (Cth) for amendment of an application (r 7.01) and that there was nothing in the order for remitter which prevented either the proceedings being transferred or an amendment to the remitted application.
It follows that the Federal Magistrate determined the original application as subsequently amended. Thus by making final orders on 4 November 2011, the mother’s original and amended applications were finalised. Although the father’s appeal against various procedural and interlocutory orders made on 8 December 2010 remained outstanding, the effect of the orders dated 4 November 2011 is that all proceedings in the court’s original jurisdiction were completed.
Over the ensuing months the father applied to stay the orders made by the Federal Magistrate (in the Federal Circuit Court, Family Court of Australia and Federal Court) without success.
The subject child turned 18 in 2012.
On 27 September 2012, the father filed an application for an extension of time to appeal the orders made by the Federal Magistrate, which application was dismissed on 15 February 2013. As a consequence, all proceedings, whether in the court’s original or appellate jurisdiction, were finalised.
Thus, when the father filed the application under consideration, as was mentioned earlier, he was required to seek leave and he was not entitled to commence proceedings which assumed the existence of a current cause of action. Had he commenced these proceedings using the correct application, the court’s processes should have identified that his application could not proceed without leave.
The hearing and the primary judge’s reasons
The primary judge did not publish her reasons for judgment. However, her reasons can be gleaned from the transcript of proceedings dated 14 October 2013.
The transcript reveals that her Honour clarified with the father that he sought an order which directed the mother to obtain evidence to rebut what was said to be the operative presumption of parentage (s 69P), a self-executing order to the effect that he is not the child’s father and an accounting/refund of child support.
Her Honour pointed out that even if the court would contemplate orders of that type, the father produced no evidence which would enable those orders to be made.
Her Honour then addressed the mother’s solicitor. The mother’s solicitor tendered a copy of the 2 April 2008 restraint order, a copy of which was given to the father. The following exchanges then occurred between the primary judge and the father:
HER HONOUR: All right, [the father]. That’s another problem for you. There’s an order here that was made that you not bring any proceedings in the court about child support without leave.
[THE FATHER]: Your Honour, Warnick J is not the Full Court. And there was an application put to the Full Court and Warnick J appeared on that occasion as being the Full Court, which he was not, and I ‑ ‑ ‑
HER HONOUR: A single judge can represent the Full Court. That can happen. It very often does. The Chief Justice can appoint a single judge of the Full Court to deal with a matter, and that’s what happened here.
[THE FATHER]: Warnick J knocked out a lot of stuff that should have gone before a proper Full Court, your Honour.
HER HONOUR: Well, there’s an order there that you not make applications like this without leave. Is there any evidence before me that you had leave to make this application?
[THE FATHER]: No, your Honour.
HER HONOUR: All right. Have a seat.
(Transcript, 14 October 2014, p 5-6)
Brief submissions were then made by the mother’s solicitor in relation to the number of occasions upon which the father had sworn affidavits, given oral evidence and signed documents in which he claimed he is the child’s father. Following those exchanges, the primary judge delivered her reasons for judgment. The reasons are set out below:
HER HONOUR: Yes. All right. Now, look, [the father], the material that’s now being drawn to my attention only confirms the concerns I had when I read your material. First of all, that there isn’t any evidence in relation to the child support assessed or paid. But the most significant thing is that for you to have paid the child support you must have accepted paternity in some way, or the registrar wouldn’t have been prepared to make the orders, because there’s no father nominated on this young woman’s birth certificate.
But I now know that you were restrained from making any more applications without leave, and you don’t have that leave. That, in itself, is enough for me to dismiss this application. But your application doesn’t have the evidence that I could even consider without making any indication of whether I would make such an order about her now that she is an adult and she has had the benefit of whatever child support it is that you paid. You have to consider your position as somebody who has declared himself to be her father.
[THE FATHER]: Your Honour, that was only on what – the mother’s say so. I took her word for it. I had ‑ ‑ ‑
HER HONOUR: No. You cannot rely on that. People make declarations and they are responsible for what they say. Doesn’t matter what the source of the information is. If you weren’t certain, it was up to you whether or not to make a declaration. So your application is deficient. Even if it wasn’t, I would dismiss it, because it was brought without leave. So I’m going to dismiss it, and I’m going to dismiss the application and say that even if there had been no restriction on bringing an application without leave, the application itself is entirely deficient of evidence that would allow me to consider whether or not to make the declarations that are sought. So that’s it. That’s it. Mr (sic) Ellis, is there anything else?
(Transcript, 14 October 2013, p 7)
With the father’s application dismissed, the mother’s solicitor applied for indemnity costs. The father gave evidence in the costs application and was cross-examined.
The primary judge commenced her reasons in relation to the costs application with a summary of s 117 of the Act. The father’s financial circumstances were analysed in relation to which she found he owned a property worth “not less than $1 million and may be 2 or more”. The property was subject to a $240,000 mortgage on which the father paid interest only instalments of $1,600 to $1,700 a month. With his only source of income being $378 per fortnight by way of government benefits, and notwithstanding he received some assistance from his parents and his wife previously worked, the $800 a month shortfall suggested that the father had “… some other source of income to be paying the mortgage at that rate…”
Her Honour viewed as significant that the father filed his application in contravention of the 2 April 2008 restraint order and without first seeking leave. Reference was made to the father’s prior declaration that he is the child’s father. Considered in the context of the prolonged history of litigation under the Act and Assessment Act, the primary judge was satisfied that the father must have known that in the event he was unsuccessful an order that he pays the mother’s costs was likely.
The primary judge accepted the mother’s solicitor’s estimate that the mother’s costs were $2,500 in relation to which her Honour said the father could have three months to pay.
Grounds of Appeal
The father prepared his notice of appeal which contains three grounds of appeal with a number of sub-grounds.
Before us, he abandoned grounds 1(a) and 3. The former wrongly asserted that the primary judge considered documents filed by the mother but which had not been served prior to the hearing. The father conceded his error. Ground 3 sought to rely upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) which act the father appropriately conceded was irrelevant.
The remaining grounds as they appear in the father’s notice of appeal are:
1.Her Honour made a number of errors of Law and /discretion. These include (but not exhaustively) that Appellant was ambushed at a mere procedural or interim hearing with the asserted determination of an application to summarily dismiss his application with significant and far reaching, unlawful ramifications when :
…
b)Citing and purporting to rely upon an ultra vires order made by Warnick J, in 2008 asserting Appellant required Leave to bring any further application/s relating to Child Support when :
(I)that order was clearly ultra vires and thus void ab initio, in that a single Judge (whether or not a judge of appeal) has jurisdiction to make substantive orders properly in the jurisdiction of the Full Bench
And
(II)Without taking Judicial Notice of the Fact that on many subsequent occasions, other judicial officers, including at least one Full Bench, had not sought to impede Appellant’s Right to bring applications in this jurisdiction.
2.Her Honour allowed material in from the Respondent’s solicitor which was :
a)served late, in defiance of specific Orders previously made
And
b)Was not duly executed in that it was not sworn or even signed OR contained hearsay.
In relation to the orders sought in the appeal, we understood the father to agree that the only orders which could be made are to the effect:
(a)the orders made by the primary judge on 14 October 2013 be set aside; and
(b)in the event the orders are set aside, that we re-exercise the primary judge’s discretion.
We understood the father to agree that because the sale of his land had been completed and his application for an extension of time within which to appeal the orders had failed, this court would not stay the operation of the 4 November 2011 orders (proposed order 6).
The father’s proposed order 7 was predicated on the assumption that the hearing of his appeal would be adjourned and him given an opportunity to rely on documents in addition to those referred to in his application in an appeal. When the father’s adjournment application was refused, his proposed order 7 had no utility.
The father’s proposed order 8 concerned the disposition of the mother’s departure application by Jarrett FM. The father having previously been refused an extension of time within which to appeal these orders, he conceded that order 8 could not be made.
Ground 1(b)(I) – the validity of the 2 April 2008 restraint order
The restraint order made by Warnick J is set out below:
…
5.That [the father] not, without leave of a Court having jurisdiction under [the Act], institute proceedings under the Act relating to or connected with child support in respect of the children or any of them of the said [father] and [a woman not the mother] and [the mother].
…
The first point which must be made is that ground 1(b) misstates the law. It is well settled that the decision of a superior court, even if in excess of jurisdiction, is valid unless and until it is set aside ( Re: Macks; Ex Parte Saint (2000) 204 CLR 158). In DMW v CGW (1982) 151 CLR 491 the High Court determined that this principle applied to orders and judgments pronounced by the Family Court of Australia.
The father provides no authority in support of his proposition that the restraint order is void. However, from the transcript of proceedings before the primary judge it would appear that his argument is that a single judge cannot exercise this court’s appellate jurisdiction. As the primary judge explained to the father, the Chief Justice may determine that the jurisdiction of the Family Court in relation to an appeal from the decision of a federal magistrate be exercised by a single judge (s 94AAA(3) of the Act). Although responsive to the father’s challenge to the validity of the restraint order, the challenge and her Honour’s response misapprehended the power exercised by Warnick J.
The orders issued on 2 April 2008 by Warnick J are headed “In the Full Court of the Family Court …” They reveal that the application before his Honour was the father’s application in a case (appeal) filed on 7 March 2008. The application concerned the exercise of power pursuant to s 94(2D) of the Act which, as that section makes plain may be heard and determined by a judge of the Appeal Division sitting alone. It would seem that with the court convened in this manner Warnick J permitted the solicitor for the mother to make an application for the restraint order.
The order does not specify the power pursuant to which the restraint order was made. However, there is no doubt that whether pursuant to s 118 of the Act or s 143B of the Assessment Act, his Honour had the requisite power. As a consequence, ground 1(b)(I) must fail.
Ground 1(b)(II) – procedural fairness
This ground also concerns the restraint order. According to the father he was “ambushed” by the primary judge in relation to the existence of the order and that, reliant on it, she erroneously dismissed his application.
There would seem little reason to doubt that the father was surprised when the mother’s solicitor brought the restraint order to her Honour’s attention. However, his assertion that the primary judge dismissed his application because he had not first obtained leave misstates her Honour’s reasons.
As can be seen from her Honour’s reasons included at [26] of these reasons, the father’s application was summarily dismissed. Although her Honour failed to identify the power on which she based her decision, we infer that she relied on Part 10.3 of the Family Law Rules 2004 (Cth) (“the rules”). By r 10.12 an application may be dismissed where:
…
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
As to the orders which may be made, pursuant to r 10.14, the primary judge had power to dismiss some or all of the father’s application.
It will be recalled, that the father sought an order that the mother produce evidence to rebut the presumption of parentage contained in s 69P of the Act. Section 69P concerns presumptions of parentage arising from marriage and is one of a number of presumptions contained in Part VII Division 12, Subdivision D of the Act. In exchanges, her Honour established from the father that it was his contention that the effect of s 69P is that the child is presumed to be the child of the mother’s former husband. However, there are five presumptions of parentage contained in Subdivision D. Although not specifically identified by the primary judge, it is tolerably clear that her Honour considered the presumption of parentage arising from findings of courts contained in s 69S to be the operative presumption.
The relevant portion of s 69S is set out below:
(1) If:
(a) during the lifetime of a particular person, a prescribed court (other than a court of a prescribed overseas jurisdiction) has:
(i) found expressly that the person is a parent of a particular child; or
(ii) made a finding that it could not have made unless the person was a parent of a particular child; and
(b) the finding has not been altered, set aside or reversed;
the person is conclusively presumed to be a parent of the child.
…
(3) In this section:
prescribed court means a federal court, a court of a State or Territory or a court of a prescribed overseas jurisdiction.
The point being that the orders made on 4 November 2011 in the Federal Circuit Court could only have been made if the court found (which Jarrett FM did at [4] of his judgment [2011] FMCAfam 1169) expressly that the father is the child’s father or could only have found him liable to pay child support on the basis he is her father. As was explained In the marriage ofTobin (1999) FLC 92-848 there is no power under the Assessment Act to require payment of child support by anyone who is not a parent. Unlike the other presumptions of parentage found in Division 12, the s 69S presumption of parentage is not rebuttable (s 69U(3)). As a consequence, s 69S was the operative presumption with the father unable to rely on s 69U (rebuttal of presumptions) to press for relief predicated upon s 69P.
It can also be seen that her Honour was concerned about the paucity of evidence concerning the payment of child support. Again, we infer that her Honour was concerned with s 143 of the Assessment Act. Section 143 of the Assessment Act contains the power to order the recipient of child support (in this case the mother) to repay child support if it is established “the payer is not liable, or subsequently becomes not liable” to pay child support (s 143(1)(b)). However, in order to trigger s 143 of the Assessment Act, a liable parent must first obtain a declaration pursuant to s 107 of the Assessment Act that he or she should not be liable to pay child support “… because the person is not a parent of the child” (s 107(1)).
The applicable rules of court require that an application pursuant to s 107 of the Assessment Act is commenced within 56 days after service of a notice that an application for an administrative assessment of child support has been accepted by the Registrar (r 4.20). Although there is power to extend the period within which an application for a s 107 declaration can be brought, that the father completed a statutory declaration declaring he is the child’s father and that he is a liable parent, as her Honour indicated, is a matter of real significance and would weigh heavily against the father being given an extension of time many years later.
Having succinctly considered the merits of the father’s application, her Honour said it was “… deficient”. We understand this to mean that the father’s application had “… no reasonable likelihood of success” (r 10.12(d)). Although there is no ground of appeal specifically directed to this conclusion, on the material to which we were taken, her Honour was undoubtedly correct.
The ordinary reading of her Honour’s reasons demonstrates that it was only after she reached the conclusion that the father’s application was deficient, that she addressed the restraint order. As her Honour explained, had she not already decided that the father’s application would be dismissed, this was another basis upon which it must fail.
Ground 1(b)(II) has not been made out.
Ground 2 – impermissible reliance upon material filed by the mother
By ground 2 it is asserted that the primary judge erred by permitting the mother to rely upon material served after the due date.
Directions concerning the father’s application were made by a registrar on 26 June 2013. By order 2 the mother was required to file and serve any response and affidavit by 26 July 2013. Although the mother’s material was filed within time, it would appear to be agreed that service was effected a few days late. Neither to her Honour or before us did the father identify any possible prejudice by the mother being permitted to rely on this material. Given that the hearing before the primary judge took place some 10 weeks later, her Honour was quite correct to take the material upon which the mother relied into account.
It is the father’s contention that her Honour erred by permitting the mother to rely upon her Response filed on 23 July 2013. His point being, that the mother did not sign the statement of truth of the contents of her Response, as a consequence of which the Response was deficient.
It is common ground that the mother was required to sign the statement of truth. However, because the Response was filed electronically r 24.07 (filing by email and internet) applies. The effect of r 24.07(3) is that the mother’s Response “is taken to be signed, before it is transmitted, by the party or lawyer who filed it”. Rule 24.07(5) requires the mother or her lawyer to retain the original signed Response until the end of the case or appeal and to make the document available for inspection on request. The father did not request that her Honour require the mother to produce the original document, nor was any such request made before us.
That the mother was permitted to rely on her Response was an orthodox application of the rules.
Ground 2 has not been established.
The application to adduce further evidence
As was mentioned earlier, the father sought leave to adduce further evidence in the appeal pursuant to s 93A(2) of the Act. Excluding an affidavit sworn by his wife in relation to the circumstances of service and an affidavit which contained the father’s submissions he sought to place before the primary judge, the remaining documents concerned earlier proceedings and were not relied on before the primary judge.
In CDJ v VAJ (1998) 197 CLR 172, McHugh, Gummow and Callinan JJ said at [109]:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Although her Honour did not permit the father to rely upon his affidavit, it was an affidavit that contained submissions and not evidence. He was, in any event, given the opportunity to speak to it. There was no issue concerning service and the father’s wife’s affidavit is irrelevant.
The other documents concerned the factual substratum of matters filed in other applications or in relation to appeals. They were not germane to these proceedings and are irrelevant.
In our view, the further evidence would not establish that the primary judge’s decision was not open to her or that her decision was erroneous.
The further evidence application will be dismissed.
Other Matters
Although the father appealed against the order for costs, he presented no grounds of appeal concerning this topic. There is nothing contained in the father’s summary of argument or submissions before us which causes us to have reason to doubt the correctness of her Honour’s decision in relation to costs.
Conclusion and Costs
The appeal will be dismissed. In the event the father was unsuccessful, the mother sought an order for costs which he opposed. He pointed to what he said are his difficult financial circumstances as militating against an order for costs.
The father’s appeal has been wholly unsuccessful and was demonstrably without merit. That it may be difficult for him to satisfy an order for costs, does not warrant that no order be made.
We will order the father to pay the mother’s costs of and incidental to the appeal.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 13 June 2014.
Associate:
Date: 13 June 2014
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