Lancaster & Danton
[2024] FedCFamC1A 232
•11 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Lancaster & Danton [2024] FedCFamC1A 232
Appeal from: Danton & Lancaster [2024] FedCFamC2F 1045 Appeal number: NAA 211 of 2024 File number: DGC 1527 of 2016 Judgment of: CHRISTIE J Date of judgment: 11 December 2024 Catchwords: FAMILY LAW – APPEAL – Parenting – Primary judge made orders changing the parent with whom the child lives – Where appellant argues primary judge erred in exercise of discretion – Where appellant asserts primary judge failed to give sufficient weight to expert evidence – Where appellant argues primary judge accorded insufficient weight to considerations in s 60CC(2)(b) of the Family Law Act 1975 (Cth) – Where appellant argues primary judge failed to accord sufficient weight to views of the child – Where appellant argues primary judge made errors of law – Where appellant asserts primary judge failed to give consideration to minimising risk of physical and psychological risk of harm to child – Where appellant asserts primary judge erred in failing to apply paramountcy principle – Primary judge not obliged to adopt recommendations of experts – Primary judge not bound to make orders which accorded with express views of child where to do so was contrary to child’s best interests– Orders made by primary judge were open on the evidence – Primary judge squarely considered best interests of the child and orders to protect child from physical and psychological harm – Primary judge correct in considering parenting capacity of parties – No grounds of appeal challenging orders established – Appellant to pay respondent’s costs in fixed sum – Appeal dismissed.
FAMILY LAW – APPEAL – Application in an appeal – Application by appellant to adduce further evidence in appeal – Where appellant argues further evidence would demonstrate an improper exercise of discretion on behalf of the primary judge – Where further evidence does not demonstrate error – Application in an appeal dismissed.
FAMILY LAW – APPEAL – Application in an appeal – Application by respondent to adduce further evidence in appeal to respond to appellant’s application – Where respondent does not press application to adduce further evidence if appeal is dismissed – Unnecessary to address application where appeal is dismissed – Application in an appeal dismissed.
Legislation: Family Law Act 1975 (Cth) s 93A and s 93A(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 35 and s 36
Cases cited: Andrew & Delaine [2009] FamCAFC 182
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Hall & Hall (1979) FLC 90-713; [1979] FamCA 73
Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35
Number of paragraphs: 71 Date of hearing: 25 November 2024 Place: Sydney Solicitor for the Appellant: Bowlen Dunstan and Associates Pty Counsel for the Respondent: Ms Mooney SC Solicitor for the Respondent: SLF Lawyers ORDERS
NAA 211 of 2024
DGC 1527 of 2016FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS LANCASTER
Appellant
AND: MR DANTON
Respondent
ORDER MADE BY:
CHRISTIE J
DATE OF ORDER:
11 DECEMBER 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 15 October 2024 is dismissed.
2.The Application in an Appeal filed 13 November 2024 is dismissed.
3.Appeal NAA 211 of 2024 is dismissed.
4.The appellant pay the respondent’s costs of the appeal in the fixed sum of $14,000 within 28 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Lancaster & Danton has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an appeal from final parenting orders made 6 August 2024 by a judge of the Federal Circuit and Family Court of Australia (Division 2).
Those final parenting orders changed the living arrangements for the parties’ child (“[X]”) such that the parties’ child was to move from the primary care of the appellant mother to the primary care of the respondent father. This appeal is a challenge to that decision.
For the reasons which follow, the appeal will be dismissed.
THE TRIAL
At the time of trial, the child the subject of the proceedings was 12 years old.
Final orders had been made by consent in June 2017. The orders provided for the child to live with the mother and spend time with the father five nights each fortnight, during school holidays and on special occasions.
The parties by and large complied with those orders until about September 2021. By November 2022 there were orders for supervised time. That occurred on four occasions ceasing in December 2022.
At the conclusion of the trial, the appellant and ICL sought orders by way of a joint Minute which provided that X live with the appellant. The trial judge determined that such an arrangement was not in X’s interests and made orders which provided that X live with the respondent.
In reaching that conclusion, the primary judge observed:
[159]At the same time, the mother’s role in the resist/refuse dynamic has been completely lost in this process. There is no evidence that the issues identified by Ms [W] and Ms [D], as to the mother’s capacity to encourage [X] to have a relationship with [X], have been addressed or that she has attended therapy with a professional experienced in separated, high conflict parenting, as recommended in Ms [D’s] report. Whilst the mother says she attended counselling at the [Z Centre] there is no evidence this was for the purpose of addressing these concerns or if it was that it made any difference to the mother’s attitude.
(Footnote omitted)
…
[162]In coming to this decision, I recognise the proposed orders go against [X’s] expressed views. [X] ought to be told I have heard his views but nonetheless, determined it is in his best interests to live with his father. I have also taken into consideration that although he currently has no relationship with his father, that less than three years ago, [X] had a loving relationship with him which has provided a strong foundation. It is not too late, in my view, to restore that relationship between [X] and the father, and [X] is owed that opportunity.
APPLICATIONS IN AN APPEAL
The appellant filed an Application in an Appeal on 15 October 2024.
The respondent filed an Application in an Appeal on 13 November 2024.
Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“Federal Circuit and Family Court of Australia Act”) gives this Court an unfettered discretion to admit further evidence on appeal.
The exercise of the discretion is guided by principles which have been drawn from the extensive case law (predominantly relating to the predecessor of s 36 of the Federal Circuit and Family Court of Australia Act, s 93A of the Family Law Act 1975 (Cth) (“the Act”). The first relevant principle is that the “discretion that s 93A(2) confers on the Full Court to receive further evidence on an appeal exists to serve the demands of justice” (Hsiao v Fazarri (2020) 270 CLR 588 at [43] (citing CDJ v VAJ (1998) 197 CLR 172 at [111]) (“CDJ v VAJ”)).
In CDJ v VAJ, the High Court outlined the following in the judgment of McHugh, Gummow and Callinan JJ:
[114] No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. Where there is no need for a new trial or extensive taking of evidence, other discretionary factors such as the availability of the evidence at the trial and the need for finality of litigation are likely to be more relevant in the exercise of the discretion than the effect that the evidence would have had at the trial.
…
[116]The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
…
[148]… The power conferred by s 93A(2) is not a solvent for correcting orders that the Full Court regards as unsatisfactory but which contain no appealable error. New hearings are not to be ordered merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child. It is true that finality of litigation cannot play the part in the exercise of the s 93A(2) discretion that it does in the exercise of the discretion to order a new trial in common law proceedings. Nevertheless, it does have a role to play in the exercise of the s 93A(2) discretion. Whatever the limits of that role, it at least rules out the admission of further evidence where the appellant cannot establish any error in the making of the orders but seeks to have a new trial because on the whole of the evidence now available different orders might be made at that trial.
The appellant sought to rely on the material identified in her Application in an Appeal in support of the submission that had the primary judge had available to her the evidence in those documents then the resulting orders would not have been a proper exercise of her discretion.
The respondent sought to rely on the material identified in his Application in an Appeal in support of the correctness of the decision of the primary judge. The respondent’s position was that his application was responsive to that of the appellant such that if the appellant’s application were dismissed then he would not press his application.
The appellant conceded that not all of what was sought to be relied upon could be classified as undisputed.
The appellant submitted that if the further evidence were admitted it would inform consideration of the following Grounds: 4, 5, 7 and 8.
The appellant sought to rely on a transcript of proceedings heard 8 August 2024, all documents filed by the appellant in support of her stay application, all documents produced on subpoena to BB Hospital and reasons for judgment of the primary judge dated 2 October 2024 (“the stay judgment”). As it transpired, there was no transcript of 8 August 2024. I have otherwise read the material identified to inform my decision about whether to permit the further evidence.
The respondent sought to rely on an affidavit by him.
I have concentrated squarely on what I would regard as the uncontested evidence as follows:
(a)The child came into the father’s care on 6 August 2024;
(b)On 7 August 2024, the child left school and came into his mother’s care;
(c)On 8 August 2024, X expressed thoughts of self-harm to a GP and a report was made to Department of Families, Fairness and Housing;
(d)X’s treating psychologist indicated the child was at high risk of suicide and self-harm;
(e)On 9 August 2024, X met with a GP who recommended that he attend the FF Hospital for assessment. He attended and was spoken with but not admitted;
(f)The child left the home of the paternal grandparents on 10 August 2024;
(g)Police located the child on 11 August 2024 and he was returned to the care of the father;
(h)The child was hospitalised on 12 August 2024 (not mental health related);
(i)Between 21 August 2024 and 18 September 2024, the father facilitated the child’s attendance at a children’s mental health facility;
(j)On 3 September 2024, the father received a message from the mother to say X was with her;
(k)On 4 September 2024, the child was returned to the father;
(l)On 5 September 2024, the child was admitted to the paediatric ward at BB Hospital where he remained until discharged on 8 September 2024; and
(m)On 2 October 2024, the primary judge stayed the final orders and the child returned to the appellant’s care.
It is my view that the undisputed evidence taken at its height indicates that the child has run away from his father’s care and had experienced distress which he has expressed as thoughts of self-harm. The hospital assessed the child at low risk. I am unable to make findings about the disputed evidence.
I accept that the primary judge has stayed the final orders pending disposition of this appeal and I have considered those reasons for judgment.
I am conscious that the primary judge’s reasons not only contemplated the possibility that the child would run away from the home of the respondent to the home of the appellant, her Honour also considered that while this posed a risk it was not unacceptable. In a similar vein, the primary judge considered the risk of psychological harm to the child arising from a change of care arrangements and upon considering the ameliorating factors determined the risk was not unacceptable. Section 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) does not exist to correct unsatisfactory orders or provide for new hearings “merely because there is a real chance that a different order might be made by a different judge or that there is a real chance that the order under appeal does not serve the best interests of the child”: CDJ v VAJ (1998) 197 CLR 172 at [148]).
As it is necessary to understand the manner in which the appellant contends the proposed further evidence informs the various grounds, this will be discussed below.
THE APPEAL
The decision from which the appeal lies is a discretionary one. The original appeal grounds fell into the following categories:
(a)Assertion of actual or apprehended bias (Grounds 10 and 11);
(b)Complaints about weight (Grounds 2, 4, 5, 8, 9); and
(c)Asserted legal error (Grounds 1, 3, 6 and 7).
At the oral hearing of the appeal the appellant abandoned Grounds 10 and 11.
Ground 1
The primary judge failed to make the child’s best interests the paramount consideration when making the parenting orders on 6 August 2024, contrary to s60CA of the Family Law Act 1975.
(Appellant’s Notice of Appeal filed 14 August 2024)
In submitting that the primary judge failed to apply the paramountcy principle it is implicit that that the appellant contends either:
(a)the primary judge elevated another consideration above the child’s best interests; or
(b)the primary judge did not apply the paramountcy principle.
The Summary of Argument does not identify any matter which is said to have supplanted the child’s best interests. Indeed, the submissions which the appellant makes at [5]–[6] appear directed to an assertion that the primary judge failed to have regard to relevant evidence.
The oral submissions did not further elucidate the manner in which the primary judge was said to have failed to apply the law.
This ground has no merit.
Ground 2
Contrary to s60CA of the Act, the primary judge gave no weight, or no appropriate weight, to the preponderance of the expert evidence as to what parenting arrangements would and would not be in the best interests of the child.
(Appellant’s Notice of Appeal filed 14 August 2024)
The appellant’s summary of argument is almost entirely dedicated to submissions in support of Ground 2, which contends the mutually exclusive propositions about weight afforded to expert evidence: that is, on the one hand, that the primary judge afforded it no weight and on the other that she afforded it inadequate weight.
The weight to be attached to evidence at trial is a matter for the primary judge unless the appellant is able to establish that the primary judge was plainly wrong: CDJ v VAJ (1998) 197 CLR 172 at 230-231 (per Kirby J).
The passage from the decision of Stephen J in Gronow v Gronow (1979) 144 CLR 513 at 519-520 has application here:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
This ground was central to the appeal. The appellant submitted that primary judge had failed to appreciate or acknowledge the written recommendations of the report writer and had ignored the oral evidence which was supportive of the appellant’s case.
The Summary of Argument refers to the evidence of Ms O (a family therapist), Dr S (child psychologist) and Ms D (family report writer).
The appellant was critical of the primary judge for failure to adopt the evidence of the three identified experts. The primary judge was not obliged to adopt their opinions provided that the reasons for judgment made plain why the evidence is rejected or why different evidence is preferred: Hall & Hall (1979) FLC 90-713 and Andrew and Delaine [2009] FamCAFC 182. As discussed below, I am satisfied that the primary judge had regard to the evidence of the experts and addressed the bases upon which her Honour had departed from recommendations contained in their evidence.
The family therapist
Ms O was appointed to provide court ordered reportable family therapy. Ms O saw the parties and X. She did not see any of the individuals together. Ms O expressed opinions in the report under the heading “Summary and further directions”. In summary, she concluded that the respondent had not acknowledged his role in the breakdown of the relationship with the child.
The appellant’s Summary of Argument highlighted the evidence given by Ms O about the mother’s willingness to facilitate the child’s relationship with the father. While Ms O indicated that in her view that mother was “quite willing”, the primary judge reached a contrary view which her Honour set out at [116].
The child psychologist
Dr S is a clinical psychologist who was engaged by the parties to provide assistance for the child initially through a private provider of psychology services to school and subsequently through his own private practice. Those sessions ceased when the respondent withdrew consent following receipt of a report.
Dr S recorded in his email to the parties of 3 December 2021 what X had reported to him in session about reluctance to spend time with the respondent. His recommendation included “[X] should be encouraged to have a relationship with both of his parents” (Appeal Book, p.314).
The appellant’s Summary of Argument suggests that the primary judge was in error not to have adopted the opinion of X’s treating psychologist, Dr S. Dr S’ evidence was considered by the primary judge and the reasons for judgment make plain that her Honour approached the evidence of Dr S from the perspective that the psychologist had conducted his counselling based on X’s perception that the father had abused him. In that regard, the primary judge made findings that the child had not presented as fearful, distressed or upset in the father’s presence and his extreme presentation was disproportionate to the alleged harm and did not present until many years after the events which were said to be causative. The primary judge was entitled to approach the evidence of Dr S through the prism of her findings.
The Family Report writer
Ms D’s report was dated 10 September 2023 and drew on interviews conducted in July 2023 and material filed by the parties in 2022. More recent information was available to the report writer from contact reports and the psychiatric assessments of the parents.
The report contained both an evaluation and recommendations at [78] which, while expressed as subject to evidence, recommended that the child live with the appellant and, following family therapy, spend unsupervised time with the respondent during alternate weekends and school holidays.
Ms D expressed the following opinion in her written report (at [64]):
Since Mr [M] recommended in August 2022 that further scrutiny might provide helpful information to the Court, the psychiatric assessments of both Ms [Lancaster] and Mr [Danton] and the supervised contact reports have revealed that overall, Mr [Danton] does not present as a protective risk, but that Ms [Lancaster] might be empowering [X] beyond his emotional/psychological capacity to resist the rebuilding of a relationship with his father.
(Family Report dated 10 September 2023)
The appellant’s Summary of Argument contends that the oral evidence of Ms D supported the recommendations in her written report.
The cross-examination of Ms D identified advantages and disadvantages of both parties’ proposals.
The respondent submitted, by reference to the transcript, that what the appellant had described as the family report writer’s internally contradictory evidence was actually more properly understood as a distinction between the evidence which the expert gave about what arrangements would ideally serve the best interests of the child and those which, having regard to the facts in the matter would, as a matter of practical reality, best meet the interests of the child.
The primary judge was entitled to approach the recommendations of the report writer (both written and oral) through the lens of the evidence as a whole. At no time was the primary judge obliged to adopt the recommendations of the expert (provided that in rejecting them the basis for such rejection was plain as it was here).
Ground 3
Contrary to s60CA of the Act, the primary judge gave no consideration to any outcomes that, whilst ensuring the child maintained a meaningful relationship with the Respondent, would minimise the risk of physical and psychological harm to the child.
(Appellant’s Notice of Appeal filed 14 August 2024)
By this ground, the primary judge is said to have fallen into error by failing to consider alternate outcomes.
The primary judge was obliged to consider the proposals of the parties. Provided the parties were given procedural fairness, the primary judge was also entitled to consider other parenting arrangements for which no party contended.
It is a high bar for an appellant to succeed where, as here, she contends on appeal that the primary judge ought to have given due consideration to a proposal which was not before her.
I do not accept that the primary judge failed to consider alternate scenarios. She plainly did at [106], [108], [118], [136] and [160].
Ground 4
The primary judge failed to give greater weight to the primary consideration set out in s60CC(2)(b) of the Act than to the primary consideration set out in 60CC(2)(a) of the Act, contrary to s60CC(3) of the Act.
(Appellant’s Notice of Appeal filed 14 August 2024)
The decision of the primary judge was grounded in the greater weight her Honour had placed on protection of the child from psychological harm. None of the undisputed material sought to be relied upon by the appellant as a consequence of the application to adduce further evidence demonstrates error.
Ground 5
Contrary to s60CC of the Act, the primary judge accorded greater weight, and/or paramountcy, to her views of the relative parenting skills of the parents, over the best interests of the child and the need to protect the child from physical and psychological harm.
(Appellant’s Notice of Appeal filed 14 August 2024)
The primary judge’s consideration of the parties’ respective parenting capacities was a consideration which fed into her ultimate determination that the orders which her Honour made were in the best interests of the child. As has already been observed, the weight to be attached to relevant statutory considerations is a matter for the primary judge.
The statutory considerations inform the best interests determination so it is a nonsense to submit that the primary judge has considered a relevant matter in preference to the child’s best interests.
No error has been demonstrated. This position is unaffected by the proposed further evidence.
Ground 6
Contrary to s60CC of the Act, the primary judge gave paramountcy to sanctioning the Appellant for perceived failings in her parenting the child over the best interests of the child and his protection from physical and psychological harm.
(Appellant’s Notice of Appeal filed 14 August 2024)
The fact that the appellant may experience the effect of the orders as subjectively punitive does not mean that the primary judge was, to use the words of the ground, “sanctioning” the appellant. The primary judge was obliged to consider the capacity of each parent and did so. No error is demonstrated.
Ground 7
Contrary to s60CC of the Act, the primary judge made orders that she anticipated would place the child at immediate risk of physical and psychological harm.
(Appellant’s Notice of Appeal filed 14 August 2024)
The primary judge did not make orders which she anticipated would place the child at immediate risk of unacceptable physical or psychological harm.
In fact, the primary judge explicitly considered at [160] that the orders which she made would protect the child from psychological harm and not expose him to physical harm at [110] and [150]–[155].
The recognition of the likely response of the child to orders which were contrary to his expressed views was balanced against the long-term psychological impact on the child of being unable to enjoy the benefits of a relationship with both parents.
It is necessary to consider the extent to which this is effected by the proposed further evidence. I accept that the appellant submits that the material which she seeks to rely upon establishes immediate risk of harm. I, however, cannot be satisfied that the undisputed proposed further evidence establishes an immediate risk of physical and psychological harm.
Having considered each of the grounds which the appellant identified as being informed by the proposed further evidence and finding no merit in any of those grounds, it follows that the applications to adduce further evidence of the appellant and respondent will be dismissed.
Ground 8
Notwithstanding the child’s age, maturity, level of understanding, the experts’ evidence as to such factors and their assessment of the views expressed by the child and the weight of the evidence about those matters, the primary judge failed to accord any weight, or any appropriate weight, to the views of the child, contrary to s60CC(3)(a) of the Act.
(Appellant’s Notice of Appeal filed 14 August 2024)
The child’s views were considered as required by the Act. It is not open to submit that the primary judge failed to accord any weight to those expressed views. The appellant’s complaint is that the primary judge did not make orders which accorded with the expressed views of the child. This course was open on the evidence.
The manner in which the views had been formed impacted significantly on the treatment of these express views. Ironically, the black and white nature and vehemence of the views were actually given significant weight in persuading the primary judge that the orders ultimately made were necessary to protect the child from psychological harm.
In considering the extent to which this is effected by the proposed further evidence, it is necessary to observe that the undisputed evidence is of a similar nature to that which was before the primary judge. It follows that I am not satisfied that the undisputed proposed further evidence demonstrates error, nor am I am satisfied that absent that evidence the appellant has demonstrated that the weight the primary judge attached to the evidence produced error. As the High Court observed in Gronow & Gronow (1979) 144 CLR 513 at 520: “an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight”. No error is demonstrated.
Ground 9
Notwithstanding the weight of the evidence, in particular the expert evidence, the primary judge failed to accord any, or any appropriate weight, to the likely effect of changes to the child’s circumstances by reason of the child’s total and complete separation from the Appellant, contrary to s60CC(3)(d)(i) of the Act.
(Appellant’s Notice of Appeal filed 14 August 2024)
Again, the ground nonsensically asserts either that no weight was given or that inadequate weight was given.
The primary judge plainly considered the impact on the child of separation from the appellant.
At [166], the primary judge said:
As part of assessing the risks, I have considered the impact on [X] of being separated from his mother, to whom he has a very strong attachment, and of making orders that prevent any communication with her. However, the only way he will have any chance of being able to re-establish his relationship with his father is if [X] is completely free from any influence of the mother, the maternal grandmother or the mother’s friends.
In effect, the ground is no more than another complaint that the primary judge did not afford the weight to this consideration for which the appellant contended at trial. It is not open to submit that the primary judge failed to consider it and it has not been demonstrated that the weight which her Honour afforded it was plainly wrong. This ground fails.
COSTS
The appeal has been dismissed. In those circumstances, the respondent sought costs of the appeal. I accept that the appeal having been dismissed, the appellant has been wholly unsuccessful. That is a justifying circumstance and I propose to make an order.
The respondent filed a Schedule of Costs. The appellant contested the quantum of the costs sought in the schedule. The appellant acknowledged a mutual interest in the costs (if ordered) being ordered in a fixed sum and I propose to do so. In that regard, the respondent accepted that the figure which had been sought by the appellant (not including disbursements) was a proper figure in respect of the respondent’s own costs and I propose to fix the costs by reference to that concession in the sum of $14,000.
I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie. Associate:
Dated: 11 December 2024
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