Langmeil & Grange
[2013] FamCAFC 31
•18 March 2013
FAMILY COURT OF AUSTRALIA
| LANGMEIL & GRANGE | [2013] FamCAFC 31 |
| FAMILY LAW – APPEAL – Application for permission to commence parenting proceedings – Where the Application for permission is in the context of a s 118 Family Law Act 1975 (Cth) order made against the mother for previously bringing frivolous or vexatious proceedings – Where the mother is seeking a substantial change in existing parenting orders – Where the Application must be considered in the context of the history of litigation which has been long and complex – Whether the allegations of abuse made by the mother are of a similar character to previous allegations the mother has made – Where the court was not satisfied that the case has a reasonable likelihood of success that would warrant granting permission to commence proceedings. FAMILY LAW – APPEAL – Application to adduce further evidence – Where the further evidence would not establish that the trial judge’s decision was not open to her or that her decision was erroneous. |
| Family Law Act 1975 (Cth): ss 118; 60B; 93A Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth) Family Law Rules 2004 (Cth): r 11.5 |
| CDJ v VAJ (1998) 197 CLR 172 DL & W (2012) FLC 93-496 Freeman and Freeman (1987) FLC 91-857 Marsden v Winch (2009) 42 Fam LR 1 McNamara and Rose [2007] FamCA 529 Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29 Rice & Asplund (1979) FLC 90-725 SPS & PLS (2008) FLC 93-363 Zabaneh & Zabaneh (1986) FLC 91-766 |
| APPELLANT: | Ms Langmeil |
| RESPONDENT: | Mr Grange |
| FILE NUMBER: | ADC | 365 | of | 2008 |
| APPEAL NUMBER: | SOA | 62 | of | 2012 |
| DATE DELIVERED: | 18 March 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Coleman, Ainslie-Wallace & Ryan JJ |
| HEARING DATE: | 5 March 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 20 July 2012 |
| LOWER COURT MNC: | [2012] FamCA 588 |
REPRESENTATION
| FOR THE APPELLANT: | Ms Langmeil appeared in person |
| COUNSEL FOR THE RESPONDENT: | Ms Dixon |
| SOLICITOR FOR THE RESPONDENT: | A K Reeves & Associates |
Orders
The appeal against the orders of the Honourable Justice Dawe made on
20 July 2012 is dismissed.
The appellant’s application to adduce further evidence filed on
14 February 2013 is dismissed.
Within six (6) months of agreement or assessment as to quantum, the appellant pay the costs of the respondent in relation to this appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Langmeil & Grange 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 ADELAIDE |
Appeal Number: SOA 62 of 2012
File Number: ADC 365 of 2008
| Ms Langmeil |
Appellant
And
| Mr Grange |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Langmeil (“the mother”) against an order made by Dawe J on 20 July 2012 that the mother’s application for permission to commence parenting proceedings be dismissed. Permission is necessary because on 20 October 2010 pursuant to s 118(1)(c) of the
Family Law Act 1975(Cth) (“the Act”) the mother was restrained from commencing an application for orders in relation to the parties’ children except by leave.
Where a s 118(1)(c) restraint order operates, the person subject to the order is required to seek permission pursuant to r 11.05 of the Family Law Rules 2004 (“the Rules”) to start or continue a case. By r 11.05(4) the Court must not grant permission to start or continue a case unless it is satisfied that the case has reasonable likelihood of success.
The mother filed an Application in a Case on 4 July 2012 which, if permitted, would result in an application for orders that the parties’ three children be removed from their father, that they return to her “full time care” and that the father have supervised contact with the children. In support of her application the mother presented a Notice of Child Abuse, Family Violence or Risk of Family Violence and an affidavit which were both dated 4 July 2012.
The mother’s application was served upon Mr Grange, who is the children’s father and the respondent to this appeal (“the father”). At the hearing before the trial Judge, the mother and Independent Children’s Lawyer (“ICL”) appointed to represent the children’s interests appeared but the father did not. Before the trial Judge, the ICL submitted that the mother’s application should be dismissed. In relation to this appeal, by letter dated
19 October 2012, the ICL informed the Regional Appeals Registrar that the ICL would not be participating in this appeal.
The father was represented in this appeal and sought to uphold the trial Judge’s order.
Background Facts
This appeal must be considered in the context of the history of litigation in this Court which has been long and turbulent. It is evident that the children have been the subject of litigation between their parents for most of their lives.
This background history is largely extracted from the reasons for judgment of Stevenson J given 3 August 2011.
The parties met in 1992 and began to live together in 1993. They married in January 2003 and separated on 21 January 2008.
They have three children, M who was born in February 2004, W born in June 2005 and L born in November 2006. At separation, the children were almost four, two and a half and 14 months. After separation the children remained in the mother’s primary care.
The mother commenced parenting proceedings in February 2008. The first final hearing took place before Bell J on 29 September – 1 October 2008. A pivotal issue in this hearing was the mother’s assertion that the father had sexually abused the children. Bell J ordered that the children live with the father and have supervised time with the mother. They have lived with him ever since and spend time with the mother under supervision.
On 11 December 2008, the mother filed a Notice of Appeal against the orders of Bell J. Judgment was delivered by the Full Court on 5 February 2010. In relation to that appeal the main thrust of the mother’s appeal failed. The
Full Courtordered that the father have sole parental responsibility.
On 2 March 2010, the mother filed an application for special leave to appeal to the High Court. Her application was refused on 30 September 2010.
On 6 April 2010, the mother filed an application for orders to remove the ICL and for sole parental responsibility. The mother’s application was dismissed.
On 16 June 2010, the mother filed another application for sole parental responsibility. This application was also dismissed.
On 5 October 2010, the mother filed an application seeking that she have sole parental responsibility and that the children have unsupervised time with her. Her application was dismissed on 20 October 2010. On the father’s application, on 20 October 2010, Dawe J made an order pursuant to s 118 of the Act, in the terms set out below:
…
2.UNTIL FURTHER ORDER [the mother] is restrained from filing any application under the Family Law Act 1975 in this Court in relation to [the children] or in relation to property settlement matters except by leave of a Judge.
3.Any application for leave is to be made in the first instance to a Judge in Chambers and unless otherwise ordered is not to be served upon any other party.
On 20 December 2010 the mother filed another application in which she sought sole parental responsibility, that the children live with her and following the father’s assessment by an appropriately qualified person, spend time with him at a contact centre. As was explained by the Full Court in the second appeal, the mother’s December 2010 application was founded on new allegations that the father had sexually and physically abused the children. The father resisted the mother’s application and proposed that she have supervised time at a contact centre.
After a five day hearing, on 3 August 2011, Stevenson J ordered that the father have sole parental responsibility for the children and that they live with him. In relation to the children’s time with the mother, it was ordered that this occur once a week at a contact centre for the maximum period permitted by the centre or from 10.00 am until 2.00 pm each Saturday under the supervision of a person approved by the father.
By Notice of Appeal filed 29 August 2011 the mother appealed against the orders made by Stevenson J. Her appeal was dismissed on 16 March 2012.
As was mentioned earlier, four months later, the mother filed this application for permission to commence parenting proceedings, which application was heard and dismissed by Dawe J on 20 July 2012.
In refusing the mother’s application, the trial Judge correctly articulated the test to be applied pursuant to r 11.05 and said at [18]:
…The rules require applications to show reasonable likelihood of success before the matter is dealt with on its merits. …
Rule 11.05 states:
1) This rule applies if:
a)The court has made an order under subsection 118(1) of the Act or paragraph 11.04 (1)(b); and
b)The person against whom the order was made applies for permission to start or continue a case.
2)The Application must be in an Application in a Case and must be made without notice to any other party.
3) On the first court date for the application:
a) The court may dismiss the application; or
b) The court may:
(i) order the person to:
A.serve the application and affidavit; and
B.file and serve any further affidavits in support of the application; and
(ii) list the application for hearing.
4)The court must not grant permission to start or continue a case unless it is satisfied that the case has a reasonable likelihood of success.
Grounds of Appeal
The mother relied on her Amended Notice of Appeal filed 12 September 2012. It is appropriate to set the grounds out in full. They are:
1.The orders of 20/07/2012 by the Honourable Justice Dawe to dismiss a Notification of Child Abuse, A Form 4, contrary to the provisions in the Family Law Act (1975 and 2012), Section 67Z, 67ZA, Section 60 CC(3) (k), Section 60B, 13 (4) section 11, para 43 (1) (a), Section 4AB(1-4) and Section 19, which are designed to protect Children from Physical Violence and Domestic Violence.
2.The Orders of 20/07/2012 by the Honourable Justice Dawe contain an error of fact in describing the Physical Abuse allegations as similar to previous statements by the Children that they have been Sexually Abused by the father.
3.The Orders of 20/07/2012 contain the legal error of failing to Uphold and give effect to the Articles (19 AND 12) contained in the United Nations Convention on the Rights of the Child as Annexed to the Family Law Act TO ‘GIVE EFFECT TO’ (2012).
4.The Orders of 20/07/2012 contain an error of Fact and Law in Not applying Rice & Asplund (1979) to the New reports by the Children of Physical Abuse and Domestic Violence.
Discussion
Before we consider the mother’s grounds of appeal, it is timely to make a few observations about the court’s s 118(1)(c) power to restrict a person’s right to commence proceedings under the Act, and, where such a restraint is in place, the purpose of r 11.05. In Zabaneh & Zabaneh (1986) FLC 91-766, Evatt CJ with whom Fogarty and Renaud JJ agreed, explained at [75,586] that the purpose of these provisions “...is to prevent multifarious overlapping applications between the parties, which amount in essence to a harassment of the other party, and an abuse of the process of the Court, and which involve enormous expense for both the parties and the legal aid office”.
Of course, as was pointed out in McNamara and Rose [2007] FamCA 529 frivolous or vexatious proceedings may divert the Court’s resources away from meritorious disputes. It is a serious matter to deprive a person of access to the courts, a point made by Kirby J in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29.
With the exception of ground 2, the mother’s grounds of appeal misapprehend the difference between an application for parenting orders and an application for permission to commence an application for parenting orders. To the former, the provisions of Part VII of the Act apply whereas the latter is procedural in nature and governed by r 11.05. It follows that to the former the various provisions referred to in ground 1 apply, as does the new s 60B(4) referred to in ground 3. Whether, as the mother contends, s 60B(4) requires the Court to give effect to the Convention on the Rights of the Child in an application for parenting orders or does no more than confirm, in cases of ambiguity, the obligation to interpret Part VII of the Act to the extent its language permits, consistently with the Convention, does not require determination by us. We observe that in the Explanatory Memorandum the Attorney General explained that the provision is not the equivalent to incorporation of the Convention into domestic law.
Where, as here, the application is for permission to proceed, the provisions mentioned in grounds 1 and 3 are variously irrelevant or do no more than provide context to the r 11.05 assessment of the likelihood of success.
As will be seen, the mother’s evidence on the application focussed upon her new allegations of risk of abuse and adduced virtually nothing which would have enabled the trial Judge to consider the application in the context of the array of factors identified in Part VII.
Grounds 1 and 3 cannot thus succeed.
Consideration must now be given to ground 2. Essentially, this ground challenges the trial Judge’s finding, at [25], that the allegations made by the mother in her application for permission are similar to allegations of abuse or risk of abuse that she previously made about the father. As the mother correctly observed, on this occasion, no allegations of sexual abuse were made against the father, the risk being of “physical, psychological abuse and family violence”. According to the mother, it follows there cannot be any similarity between her allegations presented to the trial Judge and any of the allegations made by her since 2008.
Whether the trial Judge erred in finding the current allegations have similarities to those previously made requires further consideration.
At [25], the trial Judge found:
In relation to the material that has now been put before the Court, it is alleged by the mother that the children have been experiencing violence at the hands of the father and are watching inappropriate films or playing inappropriate video games. The allegations made by the mother, on this occasion, are strikingly similar to allegations which had been made by the mother previously, being based upon statements the children have made to her in the presence of other persons. These types of allegations or similar allegations were allegedly made by the children in the presence of other witnesses and were issues which were determined most recently by
Justice Stevenson. They may not be the same allegations, but they are of a similar character.
In order to appreciate the significance of the trial Judge’s findings referred to above, it is necessary to consider the earlier allegations to which her Honour referred. That said, it is unnecessary to recite every allegation previously raised by the mother considered in the earlier hearings and appeals and sufficient to identify a number which facilitate analysis of this ground.
As to the new allegations, the totality of the evidence the mother presented to the trial Judge is contained in her affidavit sworn 4 July 2012. Her evidence is set out below:
1.On 01/07/2012 [M] stated that Dad [the father] had hit [W] that morning. [W] stated ‘please Mum don’t tell the police because Dad hits me even more when you tell the police’. The statements were made, witnessed and recorded by the [contact centre].
2.On 14/04/2012 [M] and [W] stated that Dad [the father] hit them every night and yelled at them. The statements were made, witnessed and recorded in the presence of [the Independent Supervisor].
3.On 02/06/2012 [W] asked his mum not to tell the police or the government about the violent computer games Dad lets him play. This statement was made, witnessed and recorded by [the Independent Supervisor].
4.On 21/04/2012 and the 27/05/2012 [M] and [W] described a violent R Rated movie they watch all the time with Dad. Both boys quoted lines and scenes from the movie and contact centre staff at [named] informed the mother the movie was R Rated. The children are only 5, 7 and 8 years of age.
The Notice of Child Abuse merely repeats the mother’s evidence which is accurately summarised by the trial Judge at [10] – [13] and in relation to which there is no challenge.
The trial Judge then referred to the allegations of abuse referred to in Stevenson J’s judgment and the background history contained in the judgment of the Full Court delivered 16 March 2012. It follows that her Honour considered the careful analysis of the mother’s allegations of sexual abuse against the father, which culminated in Stevenson J’s findings, at [211], as follows:
I am not satisfied that the father sexually abused any of the children, and I so find, for the following reasons:
·the boys’ behaviour on the DVDs is capable of alternate interpretations, as explained by the Full Court
·[Professor X’s] methodology was flawed to the extent that her opinions are positively unhelpful
·[L’s] nappy rash and redness in December 2008 is in no way necessarily connected with sexual abuse
·an innocent explanation exists for [W’s] red penis and pain on urination in May 2009, that being that [M] jumped on him while playing on a trampoline
·the medical examinations of [W] and [L] in March 2010 revealed no abnormalities
·the mother exaggerated the condition of [L’s] genitals in December 2008 and [W’s] anus on 29 August 2010
·the children denied to police officers on 31 October 2010 that the father forced them to watch pornography
·on 31 October 2010 [W] told police officers that his bottom had “not really” been bleeding and that his mother was “a liar”
·[W] had been questioned by police officers about his anus and possible sexual abuse only a few days before his statements of 7 November 2010
·The father maintained that [W] told him a few days before 7 November 2010 that [Mr Y] intended to take him to a police station “and get his father into trouble”
·the circumstances of [M’s] conversation with
[Professor X] on 7 November 2010 are unclear and suspicious, as is the creation of his letter “for the police”·the father claimed that [W] told him that he made complaints to
[Mr D1] because the mother had promised him a reward·the father made convincing denials on oath that he sexually abused any of the children
·the mother was shown to have exaggerated certain of her evidence and that of the father is to be preferred.
On appeal, the mother unsuccessfully challenged the findings made by Stevenson J set out above.
The focus of the mother’s argument on the appeal was that the present allegations are different in substance and nature from those previously raised. We disagree. At [139] of Stevenson J’s reasons, her Honour found:
The mother claimed that the children reported to her that the father threatened to harm her if they revealed what he and the paternal grandfather had done to them. For example, she alleged that both boys said to her “Dad said we don’t like you Mum and we only pretend to like you and the house will break and there will be a fire if they tell me what Dad did and Dad will put people in the fire and Mum will be in hospital and Grandpa will get hurt.” She alleged further: “[W] also said to me ‘I told the truth about Dad and you are still alive Mum’”.
And, at [206], Stevenson J found:
At 21:00 [M] was alone in the bed and called “Mum I need to tell you something. I had a bad dream again. About a monster.” A little later he said “Dad smacks me” and the mother replied “he’s not allowed to smack you”. She asked “where?” and [M] said “on my sore finger”. He then said “it wasn’t a smack, it was a tap”. The mother said “if it happens again, you run and tell [E]. [E’s] supposed to be there the whole time, so dad can’t do anything you don’t like”. A little later she said “he’s not allowed to do it. I don’t want any of you to be alone with him”. [M] then said “you know dad, he’s done some really silly behaviour. He’s so weird and silly. He said ‘bum bum’”.
It can be seen from [25] of the trial Judge’s reasons, that in her view there are a number of similarities between the allegations relied upon by the mother in her application for permission and those she made previously. As our summary reveals, the mother previously made allegations about the children watching inappropriate (pornographic) material whilst with the father. It is not wrong to describe the mother’s allegations that the boys watched violent R rated movies with him as similar in character. There are similarities between the mother’s earlier allegation that the children said they were threatened by their father if they reported what he allegedly did to them and her allegation in relation to remarks they made on 1 July 2012. The same can be said about the allegations that the boys said on 14 April 2012 that their father hit them. In short, the only allegation which has an entirely new subject matter is the reference by W on 2 June 2012 “about the violent computer games Dad lets him play”.
But it is not merely the subject matter of the new allegations to which the trial Judge had regard when she said they were “types of allegations or similar allegations” to those made previously. In this regard, the trial Judge points to the allegations being based upon statements which the children made. The point being, no one else gave evidence that they had seen the father behave towards the children in the manner described by them. This is what the trial Judge conveyed when she said at [26] “[t]hey may not be the same allegations, but they are of a similar character”. In short, there was sufficient evidence which enabled her Honour to reach the conclusions she did.
The mother has not established that the trial Judge’s conclusion was erroneous. It follows that ground 2 will fail.
Ground 4 concerns the “rule” in Rice & Asplund (1979) FLC 90-725. According to the mother, the trial Judge failed to appreciate that the current allegations constituted a sufficient change in circumstances to warrant another hearing in relation to the children’s living arrangements.
The rule in Rice & Asplund was recently considered in
DL & W(2012) FLC 93-496 per May, Thackray & Strickland JJ. DL & W concerned Part VII as enacted immediately prior to the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. The amendments do not affect the manner in which the rule operates. It follows that their Honours remarks in DL & W also apply to proceedings to which the current Part VII applies. Their Honours in DL & W correctly recorded that the “rule” has its genesis in remarks by Evatt CJ in Rice & Asplund at [78,905-06]:
The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that … there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material …
Evatt CJ continued:
These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.
In DL v W, their Honours pointed out that:
65. The debilitating effect of ongoing litigation on children and parents alike was emphasised by Strauss J in this passage in Freeman and Freeman (1987) FLC 91-857 at 76,470–71:
“Continuing and seemingly endless and inconclusive litigation is usually emotionally damaging to the litigants and is likely to affect the children adversely. It impairs the ability of the custodian, in this case the wife, to deal with the present and plan for the future of the family. It is financially burdensome. … The welfare of the children is, in this case, as in any others concerning custodial arrangements, the paramount consideration. But once the court, either after a full hearing or by a consent order, has settled the question of custody, it is usually in the interests of the children that the order made by the court is treated as determining the dispute and be given the necessary support. Stability in the lives of children and also in the lives of adults is an essential prerequisite to their well-being. …”
In DL v W and Marsden v Winch (2009) 42 Fam LR 1, per Bryant CJ, Finn and Cronin JJ, their Honours endorsed, as do we, Warnick J’s approach to Rice & Asplund referred to in SPS & PLS (2008) FLC 93-363. In particular, that the rule is a manifestation of the best interests’ principle and founded on the notion that continuous litigation over a child or children is generally not in their interests. Also, that the application of the rule is connected with the nature and degree of change sought to the earlier order.
As to the application of the rule, the Full Court in Marsden v Winch said:
50. Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
As our reference to authority reveals, the trial Judge was correct when she said, at [21]:
… the decision must be one which is made in the best interests of the children, taking into account the history. The Court should consider the history of the matter and should not lightly entertain an application to reverse an earlier custody order, if that merely invites endless litigation for change.
It can be seen that, at [22] her Honour was concerned about:
… the enormous psychological harm which can be inflicted, not only upon the litigants but also upon the children by ongoing litigation.
Having then referred to the mother’s new allegations, the trial Judge found that, in the context of the history of long litigation about these children, she was not satisfied that it was in the children’s best interests that the mother be given permission to proceed. It is apparent that here, her Honour turned her mind to the nature of the mother’s new allegations which she weighed against the impact on the children of another parenting application. Her finding that another application for parenting orders would not be in the children’s best interests is clearly made in the context of her earlier findings already discussed in ground 2 that the mother’s evidence did not show a reasonable likelihood of success (r 11.05(4)). Having reached that conclusion, we do not consider that her Honour erred in denying the mother permission to bring another application that the children live with her and the father have only supervised contact at a contact centre.
It follows that, although her Honour was only required to consider r 11.05, as the mother requested, she went on to consider the children’s best interests which she regarded as the ultimate determinant. We are, however, unable to agree with the trial Judge that r 11.05 is subservient to the children’s best interests if by this it is intended to convey that the application for permission is in fact an application to which Part VII actually applies. So that it is clear, as we have already said, Part VII does no more than inform the assessment of prospects of success. However, it can be seen that the approach adopted by the trial Judge was to the mother’s advantage and does not warrant appellate intervention.
No ground of appeal having been made out, it is necessary to consider the mother’s application to adduce further evidence in the appeal.
Further Evidence Application
By her Application in an Appeal filed 14 February 2013, the mother sought leave to adduce further evidence in the appeal pursuant to s 93A of the Act. This constituted reports from the contact centre which document the children’s remarks about which the mother gave evidence before the trial Judge and a letter from the father’s solicitor dated 11 February 2013.
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.
The contact centre report provides some support for some of the mother’s allegations and context in which they were made. There is no support for her evidence that the boys described R rated movies “they watch all the time” and, if the supervisor recognised the movies to which the boys referred, as being
R rated, there is no mention of this in the report. As to context, this was also provided by the mother. She explained to us that the children had not said anything during the contact visits post 1 July 2012 which caused her concern. Indeed, the mother said the situation between her and the father had improved. In support of this, the mother presented a letter from the father’s solicitor dated 11 February 2013. That letter records an offer he made to withdraw supervision and gradually increase the mother’s access “on the basis that all court proceedings would be discontinued”. The mother’s decision to continue the proceedings is proof enough that his offer was rejected. If indeed the situation between the parents had improved, it might be contemplated that by continuing to press for permission to bring an application that the children be removed from the father and he have supervised contact at a contact centre, could be something of a set back.
The trial Judge did not base her decision on the absence of corroboration of the children’s remarks. In our view, the further evidence would not establish that the trial Judge’s decision was not open to her or that her decision was erroneous. Indeed, in our view, the evidence would buttress her Honour’s findings.
The further evidence application will thus be dismissed.
Costs
In the event the mother was unsuccessful, the father sought an order for costs which she opposed. The mother pointed out that she continues to study towards a Ph. D in social work, has the fulltime care of a young child and is in receipt of a single parent benefit. She has no assets or property of significance.
Evidence about the father’s financial circumstances was not provided. However, he points to the mother having been wholly unsuccessful and, in effect, says that this factor warrants greatest weight. We agree and also regard this as justifying circumstances for an order.
We also take into account that in the appeal the mother pursued a series of orders that she spend time with the children which were not sought in the court below. As was explained during the hearing, a significant number of the orders she sought in the appeal bore no relationship to her grounds of appeal or the case she presented to the trial Judge. It is also noteworthy that notwithstanding the mother appeared without legal representation, this is the third appeal she has presented. In her earlier appeals, the basis upon which appellate intervention is permitted was explained and thus, she pursued this appeal not as a novice and aware that an unsuccessful appeal would probably result in the risk she may be ordered to pay the father’s costs.
We are satisfied that it is just that the mother is ordered to pay the father’s costs of this appeal. Absent agreement as to the amount, it will be as assessed. Because of the mother’s difficult financial circumstances she will have six months to pay the amount due.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court, Coleman, Ainslie-Wallace and Ryan JJ delivered on 18 March 2013.
Associate:
Date: 18 March 2013
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