KUAN & TOH
[2016] FamCAFC 115
•21 April 2016
FAMILY COURT OF AUSTRALIA
| KUAN & TOH | [2016] FamCAFC 115 |
| FAMILY LAW – APPEAL – CHILDREN – INTERNATIONAL RELOCATION – where proceedings instituted initially in Malaysia and subsequently in Australia – where the father’s application sought the speedy return of the children to Malaysia – where the trial judge refused the father’s application – where his Honour’s orders are an “interlocutory decree” within the meaning of reg 15A of the Family Law Regulations 1984 (Cth) – where leave to appeal required – where no error established – leave to appeal refused – appellant to pay the respondent’s costs. |
| Family Law Act 1975 (Cth) ss 60CC, 67ZC and 94AA(1) Family Law Regulations 1984 (Cth) reg 15A Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983) |
| Barrios and Sanchez (1989) FLC 92-054 Bruce F McLaren Holdings Pty Ltd & Ors v McLaren and McLaren (2000) FLC 93-030 Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 Henry v Henry (1996) 185 CLR 571 Jess and Ors & Jess and Ors (2014) FLC 93-620 Karim and Khalid (2007) FLC 93-348 Kwon and Lee (2006) FLC 93-287 Licul v Corney (1976) 180 CLR 213 Medlow & Medlow (2016) FLC 93-692 Pascarl & Oxley (2013) FLC 93-536 Sampson and Hartnett (No. 10) (2007) FLC 93-350 U v U (2002) 211 CLR 238 ZP v PS (1994) 181 CLR 639 |
| APPELLANT: | Mr Kuan |
| RESPONDENT: | Ms Toh |
| FILE NUMBER: | PTW | 4846 | of | 2015 |
| APPEAL NUMBER: | WA | 8 | of | 2016 |
| DATE DELIVERED: | 21 April 2016 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Thackray, Strickland & Murphy JJ |
| HEARING DATE: | 21 April 2016 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 28 January 2016 |
| LOWER COURT MNC: | [2016] FCWAM 27 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Hooper SC |
| SOLICITOR FOR THE APPELLANT: | Lavan Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Berry SC |
| SOLICITOR FOR THE RESPONDENT: | Culshaw Miller |
Orders
1)The applicant have leave to amend the Amended Notice of Appeal filed on 12 April 2016 to include an application for leave to appeal.
2)The application for leave to appeal be dismissed.
3)The applicant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kuan & Toh 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 PERTH |
Appeal Number: WA 8 of 2016
File Number: PTW 4846 of 2015
| Mr Kuan |
Appellant
And
| Ms Toh |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Murphy J
The father of two children, aged five and three, appeals orders made by Monaghan M on 28 January 2016. The issues before his Honour arose out of the proceedings instituted by the father initially in Malaysia and proceedings subsequently issued by the mother in respect of many of the same issues in Western Australia.
The primary issue with which his Honour was concerned was the father’s application for speedy return of the children to Malaysia. As was recognised, both by his Honour and senior counsel for each of the parties, the principles applicable to that application differ from those applicable to a separate application by the father which asserted that Australia was a “clearly inappropriate forum” for the resolution of the parties’ financial issues.
This appeal concerns only the former. The effect of his Honour’s orders was to refuse the father’s application for the speedy return of the children to Malaysia. Malaysia is not a signatory to the Hague Convention on Child Abduction.[1] (His Honour also dismissed the father’s application for dismissal of the mother’s applications relating to financial issues.)
[1]Convention on the Civil Aspects of International Child Abduction, opened for signature 25 October 1980, 1343 UNTS 89 (entered into force 1 December 1983) (“Hague Convention on Child Abduction”). As was foreshadowed upon the oral delivery of these reasons, footnoted citations etc. have been added to the settled reasons.
Is Leave To Appeal Required?
The father’s Amended Notice of Appeal does not seek leave to appeal. In the father’s written submissions it is suggested that leave may be required and, without conceding that his Honour’s order was not a final order, leave is sought in the event that it is not.
If his Honour’s order is an “interlocutory decree” it is in turn a “prescribed decree of the Magistrates Court of Western Australia” from which leave to appeal is required.[2] Interlocutory decrees “in relation to a child welfare matter” are exempt from the requirement for leave.[3] Despite the fact that the instant application is brought pursuant to s 67ZC of the Family Law Act 1975 (Cth) (“the Act”) which in turn is directed to giving the court jurisdiction “to make orders relating to the children”, an application for speedy return of a child to a non-convention country does not fall within the definition of “child welfare matter” in the Regulations.[4]
[2]Family Law Regulations 1984 (Cth) (“the Regulations”), reg 15A; the Family Law Act 1975 (Cth) (“the Act”), s 94AA(1).
[3] Reg 15A(1)(a).
[4] Reg 15A(2).
As a consequence, leave is required if his Honour’s order is otherwise an “interlocutory decree”. The test for whether a judgment or order is final or interlocutory can be stated as “does the judgment or order as made finally dispose of the rights of the parties”? In applying that test, the High Court has said that the Court should have regard to the “legal, rather than practical effect of the judgment”.[5]
[5]See Licul v Corney (1976) 180 CLR 213 per Gibbs J. See also the earlier decision of Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 per Gibb CJ and the discussion of relevant principles by this Court in Bruce F McLaren Holdings Pty Ltd & Ors v McLaren and McLaren (2000) FLC 93-030.
If his Honour’s order remains undisturbed by this Court, parenting proceedings will be conducted in the Family Court of Western Australia. In ZP v PS,[6] the Chief Justice and Toohey and McHugh JJ said:
…when the Court rejects the application for a summary order and embarks on determining the issue of custody itself, it does not necessarily follow that the Court must make an order for custody or access. Further investigation of the issue may result in the Court concluding that the interests of the child will be best served by the foreign forum determining the issue. However, such cases will be exceptional.[7]
[6] (1994) 181 CLR 639.
[7] ZP v PS (above), at 648–649.
Notwithstanding their Honours’ reference to the relevant circumstances as “exceptional”, it seems to me that the legal effect of his Honour’s orders cannot be seen as finally disposing of the rights of the parties in respect of the application to return the children to Malaysia, so that the courts of that country might determine any parenting proceedings. I consider that his Honour’s orders should be seen as an “interlocutory decree” within the meaning of reg 15A of the Family Law Regulations 1984 (Cth) and that by reference to s 94AA, leave to appeal is required.
The question which then arises is whether leave should be granted. It is convenient to first consider the merits of the appeal.
The Context Within Which The Order Was Made
The facts informing the parties’ respective applications and the mother’s presence in Australia with the children were largely agreed before his Honour or are otherwise not controversial in the context of the issues on this appeal.
The parties are each Malaysian citizens, each has permanent residence in Australia; each has spent periods of time in Australia.
During their marriage, which occurred in late 2009, the father, as his Honour found, “substantially lived” in Western Australia, while the mother, together with the children, “substantially lived” in Malaysia.[8] The mother, and later the mother and children, had lived in Australia for periods totalling about 17 months during the not quite four years that the parties were married. The parties separated in Australia in October 2013.
[8] Reasons, at [3].
At that time, the mother and children returned to Malaysia and resided with the mother’s father. The children’s father remained in Western Australia alone for about 16 months, returning to live in Malaysia ultimately in May 2015. Shortly thereafter he filed proceedings in that country for dissolution of marriage, parenting orders and child maintenance. The mother was served with those proceedings.
At that time, the parties and the children were all living in Malaysia. It is not contended by the mother that the father’s proceedings other than regularly invoke the jurisdiction of the relevant Malaysian court, nor is it contended that the relevant court in Malaysia does not have jurisdiction to hear and determine the father’s applications.
In late July 2015 the mother and children moved to Australia from Malaysia after being served with the father’s initiating process in that country. The mother departed for Australia without the father’s consent. However, through her lawyers she had, some six weeks earlier, given notice to the father via email that she “intends to reside in Australia”.[9]
[9] Exhibit 14 in the proceedings before his Honour.
About a month after arriving in Australia the mother filed proceedings in the Family Court of Western Australia. Initially, no parenting orders were sought; the application was confined to financial issues. The mother subsequently amended her application on 23 November 2015 so as to include an application for parenting orders.
At the time of the hearing before his Honour, the mother had not sought a stay of the Malaysian proceedings, but his Honour was “advised from the bar table that instructions had been given to her Malaysian solicitors to seek a stay of those proceedings”.[10]
[10] Reasons, at [8].
The parties have an interest in real property in Western Australia. An additional property earlier owned by them has been sold. There is no appeal from his Honour’s orders made contemporaneously with the order under challenge which determined that Australia was not a “clearly inappropriate forum” for the conduct of proceedings relating to financial issues instituted by the mother in the Family Court of Western Australia. If the subject orders are disturbed by us, proceedings will be bifurcated: financial proceedings will be conducted in Australia, parenting proceedings in Malaysia.
The Nature Of The Order And The Trial Judge’s Reasons
The binding principles enunciated by the High Court in ZP v PS were laid down prior to significant amendments to the Act in 2006. Those amendments excited some controversy as to whether the principles in ZP v PS remained applicable. That controversy was further excited by the later decision of the High Court in Henry v Henry,[11] which did not refer to the earlier decision in ZP v PS.
[11] (1996) 185 CLR 571.
In Karim and Khalid,[12] the Full Court referred to that controversy, including what had been said by an earlier Full Court decision, Kwon and Lee.[13] After a consideration of those authorities and the relative legislative provisions, the Full Court held in Karim:
We thus endorse the view arrived at by the Full Court in [Kwon and Lee] … albeit perhaps by somewhat different reasoning, that the sole principle that governs the determination of an application for the return of a child from Australia to a foreign non-convention country is, as held by the High Court in ZP v PS … the best interests of the child. Forum non conveniens principles are not relevant to such an application.[14]
[12] (2007) FLC 93-348.
[13] (2006) FLC 93-287.
[14] Karim and Khalid (above), at [59]; see similarly, Pascarl & Oxley (2013) FLC 93-536.
Mason CJ and Toohey and McHugh JJ said in ZP v PS, when an application for summary return is made:
…the first issue is whether the welfare of the child requires the making of a summary order that those questions be tried in the foreign forum. It is only when the Family Court determines that the welfare of the child does not require the making of a summary order, that that Court should embark on determining the issue of custody itself.[15]
[15] ZP v PS (above), at 648.
It is not contended before us that his Honour did not apply the correct principles.
The Full Court sought to point out in Karim that what the High Court refers to as the “welfare power” in ZP is now specifically provided for statutorily in s 67ZC of the Act. That section requires the court to regard the best interests of the child as the paramount consideration. Section 60CC of the Act requires the court to consider the matters specified within that section “in determining what is in the child’s best interests”. Section 60CC of the Act is applicable to the decision to be made as to whether it is in the children’s best interests that they should be returned speedily to a non-Hague country.
A challenge initially pleaded by the father is that his Honour had not considered the matters prescribed by that section. That challenge is abandoned in an Amended Notice of Appeal filed on 12 April 2016. However, in light of other challenges shortly to be discussed, it is important to record that while his Honour did not refer specifically to s 60CC or, in terms, to any of its relevant paragraphs, his Honour’s reasons and the findings within them exhibit plainly that he was cognisant of the section’s requirements.
His Honour’s findings in respect of the children’s best interests, which can be seen to be directly referable to s 60CC considerations are as follows:[16]
[16] Reasons, at [21]–[25].
a)The mother was the “primary caregiver” for the children. The children were aged five and three at the date of the hearing.
b)“During the course of the children’s lives they spent substantially more time in Malaysia with their mother than in Western Australia with their father”.
c)Between October 2013 and February 2015, a period of some 16 months, when the children were aged respectively between three and four and 18 months and two, the father resided in Western Australia and the mother resided in Malaysia with the children.
d)After separation in October 2013, the father spent approximately a fortnight in Malaysia in December 2013. During that two-week period, his Honour found that the father “spent some time with the children”.
e)In the 12 month period from December 2013 to December 2014, the father “had no time or communication with the children at all”.
f)Between December 2014 and the date of the hearing in January 2016 the father “spent little time with the children”.
g)The mother alleges that the father was “verbally abusive and physically violent towards her during the marriage, including in the presence of the children”, noting that “there is scope for argument in this matter that the evidence of the [mother] with respect to family violence is somewhat inconsistent”, his Honour did not purport to resolve those allegations.
h)The mother has “the capacity to properly care for the children”.
i)Significantly, it might be thought, the father’s “application to the High Court in Malaya is for the children to primarily live with their mother”, although his Honour notes the father’s application was filed when the mother and children were living in Malaysia and prior to the mother’s unilateral relocation to Queensland.
j)Noting the amount of time the mother and children have spent living in Australia, and the submission of senior counsel for the father that the children were “entirely unfamiliar with Queensland” and that it was “common ground that the children had spent the majority of their lives in Malaysia”, his Honour found that by reference to the children’s ages of five and three, “the nature of the relationships that the children have is far more important to them than their environment”.
In outlining those findings I signal my rejection of the contention, indeed a central premise, advanced by senior counsel for the father, that his Honour’s reasons “in so far as it concerned summary return to Malaysia are to be found at … [paragraph] 26”.[17] In my view, that paragraph of the reasons is but a summary of the findings made in respect of best interests, which preceded it and which I have just set out.
[17] Appellant husband’s written submissions, at paragraph 27.
All of the findings made by his Honour as set out were well open to him.
It is important to understand that the instant proceedings do not at all preclude either party contending in parenting proceedings that the children should live with a parent in one country or the other.
The Orders Sought By The Father
The father’s written outline of argument on appeal contains the following assertion:
The learned Magistrate appears to have overlooked the orders sought by the [father] which if successful, would have seen the children returning to [City G] with the [mother] and the [father] having the liberty to apply only in the event that she did not comply with that order.[18]
[18] Appellant husband’s written submissions, at paragraph 29 (emphasis added).
That argument is supported by further arguments in these terms:
The [father] notes that the orders sought by him did not seek to, and would not inevitably [have] had the effect of, disturbing the children’s relationship with their mother.
…
There is nothing in the [mother’s] material to indicate that if returned to [City G] she would have any difficulty in locating appropriate accommodation for the children or providing for them financially.
…
A return to Malaysia would not disrupt the children’s residence with the [mother], their primary carer, nor would a return to Malaysia prevent the mother from, in the Malaysian Court, seeking to have the child reside with her and be able to move to live in Australia with them in future.[19]
[19] Appellant husband’s written submissions, at paragraphs 36, 38 & 48.
Each and all of those submissions proceed on the premise that the mother could, or should, be ordered to return to Malaysia, as distinct from orders which direct the return of the children to Malaysia. In that respect, counsel seeks to draw an analogy with the provisions of the regulations enabling the Hague Convention on Child Abduction, but of course even when those regulations apply orders are directed only to the return of the children.
As to whether the court could have ordered the mother to return, in Sampson and Hartnett (No 10),[20] this Court made it plain that “[t]he proper exercise of such a power is likely to be rare”, and orders made pursuant to an exercise of that discretion would be “at the extreme end of the discretionary range”.[21] Only “rare” or “extreme” factors warrant the court exercising its discretion to make “coercive” orders requiring a parent to relocate so as to continue to be the primary carer of their child/children. To the extent that the submissions are said to merely reflect the uncontroversial fact that, if orders were made returning the children to Malaysia, the mother would accompany them, additional central considerations pertain.
[20] (2007) FLC 93-350.
[21] Sampson (above), at [58] and [83].
The mother has a right “to live and work wherever she desire[s]”,[22] as of course does the father. Historically, each of them had individually exercised that right including when, relevantly, the father returned to Malaysia and filed proceedings there and when, relevantly, the mother travelled to Australia and filed proceedings here. The question is not whether the best interests of the children point to Malaysia hearing the parenting proceedings if the children return there with the mother – the question is whether those best interests point to that conclusion if the father exercises his right to live in Malaysia and the mother exercises her right to live in Australia.
[22]U v U (2002) 211 CLR 238 at [82], per Gummow and Callinan JJ, with Gleeson CJ and McHugh J agreeing.
Once that is appreciated, it is centrally important that the father concedes that the mother is, and has been, the primary carer of two young children and premises his arguments on that situation continuing in Malaysia. Indeed, the application filed by the father in Malaysia seeks such an order.
That concession is also relevant to the notice given by the mother that she intended to reside in Australia. The email sent on her behalf does not mention the children, but it cannot sensibly be suggested that the expressed intention did not also include the children. That notice was given about six weeks prior to the mother’s departure from Malaysia with the children.
The father submits that his Honour gave no, or insufficient, weight to the children having been “wrongfully removed” from Malaysia in determining whether parenting arrangements should be determined in the “jurisdiction from which they were wrongfully removed”.[23]
[23] Appellant husband’s written submissions, at paragraph 41.
Considerable reliance is placed by senior counsel for the appellant upon the decision of the Full Court in Barrios and Sanchez.[24] In particular, senior counsel refers to that Court saying as follows:
…Nicholson CJ expressed the view, after referring to authorities, that it was both permissible and useful to refer to international Conventions not forming part of domestic law in considering the exercise of discretion.[25]
[24] (1989) FLC 92-054.
[25] Barrios and Sanchez (above), at 77,608 per Nicholson CJ, Murray & Rowlands JJ, citing In re Jane (1989( FLC 92-007..
Obviously enough, counsel relies upon that statement in referring to the principles and policies underlying the Hague Convention on Child Abduction. It is important, in my view, to note that the Full Court in that case went on to say this:
We think that the clear policy of the Convention is that save in exceptional circumstances, children who have been removed from their lawful custodial parent in another country without the authority of a court should be returned to that parent.
In the present case we think it is appropriate to take this into account as an element to be considered, albeit subservient to the principle of the paramountcy of the welfare of the child…[26]
[26] Barrios and Sanchez (above), at 77,608 (emphasis added).
To repeat what was earlier said, there can be no doubt in this case that the mother was the primary carer of the children, and the father conceded that not only had she been the primary carer historically, but that she would continue to be the primary carer of the children in the future wherever parenting proceedings were litigated. Secondly, it is important to note that the decision of the Full Court in that case was decided some five years prior to the decision of the High Court in ZP v PS. Before referring to what was said in that case, it is important to note that the father had been residing in Australia until he returned to Malaysia for a period of about four months between December 2014 and April 2015. He then returned to Australia and decided at that time, apparently, that he would return to Malaysia permanently, a decision which he put into effect in May 2015.
In ZP, Mason CJ and Toohey and McHugh JJ said:
Injustice to one or other of the parties, expense, inconvenience, and legitimate advantage, which are always relevant issues in a forum non conveniens case, are not relevant issues in a custody application. In some cases, those matters may bear on issues which touch the welfare of the child but they are not themselves relevant issues when the question arises whether the welfare of the child requires the making of an order that the issue of custody be determined in a foreign forum.[27]
[27] ZP v PS (above), at 647 (footnotes omitted).
Of particular importance to the central argument mounted on behalf of the father by his senior counsel, their Honours later said this:
It may be accepted that, generally speaking, unilateral removal of a child from one country to another is detrimental to the welfare of the child. However, it is the duty of a judge to determine what the welfare of the child requires without regarding that question as being foreclosed simply because the child has been removed unilaterally from one country to another. In the present case, the primary judge was entitled to have regard to the ordinary consequences of unilateral removal of the child from one country to another but it was his duty to go on to investigate the materials before him and, if considered appropriate, determine the question of custody of [the child]. If his welfare required that the Family Court should determine the question of his custody, it was irrelevant that abduction of children by one of their parents is generally contrary to the welfare of such children. Furthermore, whether the husband or wife was or was not at a disadvantage or would or would not obtain an advantage if the custody issue was litigated in Australia was of no relevance. In referring to these factors, his Honour was diverted from the issue that he had to determine.[28]
[28] ZP v PS (above), at 653–654 (emphasis added).
Additional to the general principles there enunciated, in this case the mother’s move was to a country in which the father had spent a considerable amount of time, including for most of the children’s lives, and a country to and from which each of the parties could come and go as they chose.
How Is It Said That The Magistrate Erred?
The summary of his Honour’s reasons earlier given, and the principles just discussed, puts paid, in my view, to the first of the three challenges mounted against his Honour’s orders. It is said that his Honour’s reasons were inadequate to explain why a summary return of the children to Malaysia was not in the best interests of the children.
When regard is had to the question which his Honour was required to answer, stripped of irrelevant considerations, I can see no inadequacy in his Honour’s reasons.
I apprehend, however, that the argument in respect of reasons is somewhat more subtle than the ground’s terms might reveal. In that respect, the reasons challenge is intertwined with the remaining amended grounds, which it is convenient to set out:
2. The Magistrate erred in law when arriving at the decision not to order the summary return of the children to Malaysia in circumstances where he relied upon the evidence of the Single Expert Witness, [Mr B], and made a finding that:
a) The parties can fairly litigate their matters in the Malaysian Court; and
b) The Malaysian Courts will determine the appropriate arrangements for the children on the basis of the welfare of the children being paramount.
3. The Magistrate erred in fact and law in relying upon conclusions which were not supported by the evidence, or inferences which were not reasonably open to him to draw on the evidence, namely:
a) Finding the issue of family violence to be a relevant factor in the consideration of [the] exercise of jurisdiction where:
I. It was found the mother’s evidence was inconsistent with respect to family violence;
II. There was no suggestion that the Malaysian Court would not appropriately deal with any such allegation or finding; and
III. That the issue of family violence was unresolved at best.
b) That a return to Malaysia would mean a disruption to the children’s primary care by the [mother].[29]
[29] Amended Notice of Appeal, filed 12 April 2016, grounds 2 & 3.
In my respectful view, each of those grounds also contains premises not justified by reference to his Honour’s reasons or applicable principle.
First, ground 2 appears to assume that each of the two findings contained within it are determinative of the issue at hand. They are not. The best interests of the children are determinative as the High Court explained in the manner earlier outlined. In my view the ground, and the argument in support of it, seeks to apply “forum non conveniens” criteria to the relevant question.
Referring again to ZP v PS, Brennan and Dawson JJ said:
In determining an application for speedy return of the child to another country, it may be material to consider whether, if an order is made, the courts of the other country will properly inquire into and determine the child’s permanent custody. But that is not to apply a “clearly inappropriate forum” criterion to the determination of the application. If the Family Court properly makes an order for the speedy return of a child abducted from another country, the Court is not declining to exercise its jurisdiction; it is exercising its jurisdiction by making an order dictated by the welfare of that child.[30]
[30] ZP v PS (above), at 664 (emphasis added).
As was pointed out by the Chief Justice, and Toohey and Dawson JJ in the same case, the criteria the subject of ground 2 might have a different purpose, but only once a decision has been made that the best interests of the children requires that forum to hear the proceedings:
If the Family Court forms the view that the welfare of a child prima facie requires that a foreign forum should determine custody of a child, it can only be in an exceptional case that a parent’s refusal to litigate the issue in the foreign forum can affect that view. If the parent was liable to be jailed or subjected to some cruel or unusual punishment in the foreign forum, it would be right to take into account that the refusal of the parent to litigate the issue of custody might result in an order that is contrary to the welfare of the child. But except in that class of case or some analogous case, a voluntary refusal to litigate the issue in the foreign forum should be disregarded if the parent can fairly litigate the issue in that forum.[31]
[31] ZP v PS (above), at 659.
In my respectful view ground 2, and the arguments in support of it, either misunderstand the applicable test or, in the alternative, suggest that the only, or perhaps predominant, consideration relevant to the best interests of the children was that factor. It is not said how, if at all, that factor can be relevant directly to the best interests of the children.
I consider, with respect, that the premises for ground 3 are also erroneous.
Contrary to that which is asserted in the ground, the issue of “family violence” was plainly a relevant factor to be considered. It was a relevant factor to be considered because the Act requires it to be considered where allegations of family violence are made. His Honour gave consideration to the issue of family violence because s 60CC required him to consider that issue.
Having considered that issue, as he was required to do, his Honour made no determination as to the issue of family violence precisely because he noted the possibility of inconsistency in the mother’s account, and because the summary nature of the proceedings did not allow of further inquiry and determination. Plainly, as it seems to me, while his Honour considered family violence as the Act plainly required him to do, his Honour gave it no weight in the summary determination at hand. Ground 3 should be rejected.
The second part of the ground is answered by reference to what I have earlier said in respect to the position of the parties and the proper question for determination that arises as a consequence.
Leave to Appeal and Conclusion
What is described as the “test” for leave to appeal has been referred to in both Jess & Jess[32] and Medlow & Medlow,[33] the latter adopting what has been described as “a new test” for the granting of leave. I can see no error, whether of principle or otherwise, in his Honour’s judgment. I consider, with respect, his Honour’s judgment to be correct.
[32] Jess and Ors & Jess and Ors (2014) FLC 93-620.
[33] (2016) FLC 93-692.
I would refuse leave to appeal.
I would hear submissions as to the costs of and incidental to this appeal on that basis.
Thackray J
I agree with the reasons of Justice Murphy. I too would refuse leave to appeal which we take would now be sought.
I would only add that, in my view, the decision of the magistrate does not preclude an application being made for the parenting proceedings to be transferred to a venue closer to the home where the children are now presently living.
Strickland J
I agree with the reasons given by Justice Murphy, and the further reasons given by the presiding judge. I have nothing to add.
Costs
Thackray J
The application before the Court now is the application of the respondent for the costs associated with this appeal.
The primary ground upon which the respondent relies is that the application for leave to appeal has been wholly unsuccessful.
The application for costs is opposed on the basis that the primary position under the Act is that each party will pay their own costs and, more significantly, on the basis that the applicant’s financial position is such that he would not be able to afford to meet costs in the event a costs order is made. That submission is made in circumstances where the applicant has engaged senior counsel to appear today. From what we have been told from the bar table, the applicant’s financial position is controversial. He owns an asset of significant value, and although that is said to be matched by a liability of much the same amount, the liability is in dispute because it relates to a family loan.
In my view, the most significant of all of the factors that the Court is obliged to take into account in dealing with an application for costs is the fact that the applicant has been wholly unsuccessful. The Full Court has stated on many occasions that the impecuniosity of a litigant, perhaps especially in relation to appeals, is not a bar to the Court exercising its discretion to make an order for costs. In my, view the proper order is for the applicant to pay the respondent’s costs, to be assessed if not agreed.
Strickland J
I agree with the reasons of the presiding judge and the order proposed.
Murphy J
I also agree, and have nothing to add.
I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Murphy JJ) delivered on 21 April 2016.
Associate:
Date: 21 April 2016
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