M & a

[2005] FamCA 988

[2005] FamCA 988

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE  Appeal No. SA57 OF 2004

File No. MLF5259 OF 2003

IN THE MATTER OF:  M

Appellant Husband

AND:  A

Respondent Wife

CORAM:  HOLDEN, WARNICK AND MAY JJ

DATE OF HEARING:  20 JUNE 2005

DATE OF JUDGMENT:  19 OCTOBER 2005

JUDGMENT OF THE FULL COURT

Appearances:             Mr M appearing in person;

Mr Smith of Counsel instructed by Goddard Elliott Solicitors appeared for the respondent

Mr Eidelsen of Counsel instructed by Hardys Lawyers appeared for the child representative

Name of Appeal	M & A
Appeal Number	SA57 of 2004
Date of Appeal Hearing	20 June 2005
Date of Judgment	19 October 2005
Coram	Holden, Warnick and May JJ

Catchwords:      APPEALS – FROM DECISION OF FAMILY COURT JUDGE – CONTACT ORDERS - INTERIM DECISION –– the parties have two children, one aged 16 and the other 12 years of age – the trial Judge ordered that question of the older child’s contact with the father be reserved and made orders that the younger child have contact with the father during the day each Sunday – Further orders were made relating to changeover arrangements, telephone contact and other procedural applications.

APPEALS – Discretionary judgment – The appellant complained that the trial Judge was biased in his decision – The Full Court found that the only basis for the husband’s contention of bias was that the trial judge had not found the ‘facts’ to be as the husband asserted them – There is nothing in the reasons for judgment that indicate the slightest bias towards the wife or against the husband – In the absence of transcript there is no evidence to suggest that there were any valid grounds of appeal against the trial Judge’s orders - The task of an appellant of interim orders, absent error of fact or law, in establishing a wrong exercise of discretion, is made the more difficult because of the fact that the orders have only limited operation until trial

APPEALS – COSTS – The respondent wife and the child representative both sought an order for costs in the appeal – Both relied upon the complete failure of the appeal and previous notice given to the appellant.

C & C (1996) FLC 92-652

D & Y (1995) FLC 92-581

Cowling & Cowling (1998) FLC 92-801

Bellenden (formerly Satterthwaite v Satterthwaite) (1948) 1 All ER 343

Norbis & Norbis (1986) 161 CLR 513; (1986) FLC 91-712

Re F: Litigants in Person guidelines (2001) FLC 93-072

That the appeal be dismissed.  That the appellant husband pay the costs of the respondent wife and of the child representative of and incidental to the appeal, fixed in the case of the wife at $2,780 and in the case of the child representative at $2,675.

1. On 20 June 2005, we heard and dismissed an appeal by Mr M against orders made by his Honour Justice Wilczek on 27 August 2004.  Those orders dealt on an interim basis, with a number of applications and issues relating to one of the children of Mr M and the wife, Ms A.

2. These are reasons for that dismissal and for the order we now make as to the costs of the appeal.

3. A number of the grounds of appeal related to complaints about the way in which the trial Judge conducted the hearing, and others to an asserted error of discretion.

4. We will return to the grounds of appeal after a short background, which includes basic facts relating to the family, the procedural history and the trial Judge’s dealing with the matter and after reference to the principles applicable to the appeal.

Background

1. The parties have two children, B born in June 1989 and K, born in December 1993.

2. Proceedings between the parties in this Court commenced in August 2003.  These related to alteration of property interests, but issues relating to the children were quickly added.  In November 2003, an order was made that the children be separately represented.  In December 2003, orders were made for the preparation of a family report and in relation to contact between the husband and the child K.

3. On 25 February 2004, some further orders about contact were made by a Judicial Registrar and all interim parenting issues were adjourned to the judicial duty list on 27 July 2004.  Before that date, on 29 March 2004, the husband filed an application to review the orders made on 25 February 2004.  On 19 May 2004, the wife filed a Form 2 seeking, among other things, discharge of previous contact orders and the making of new contact orders.  On 3 June 2004, the husband filed a response seeking other contact orders.  On 4 June 2004, the husband filed a contravention application, asserting a failure on the part of the wife to comply with orders for contact.  On 11 June 2004, by consent, all of these applications were adjourned to 27 July 2004, as were other issues relating to contact changeover.

4. As earlier indicated, his Honour Justice Wilczek heard all of these matters on 27 July 2004.  He reserved his decision until 27 August 2004.  On 26 August 2004, the husband filed a further Form 2 application, seeking further orders relating to contact and other parenting issues.  On 27 August 2004, his Honour made orders relating to the matters with which he had dealt on 27 July 2004 and gave reasons for those orders.  He also dealt with the application filed 26 August 2004, which he dismissed.  He gave his reasons in relation to the orders made in respect of that dismissal, on 31 August 2004.

5. In his reasons for judgment delivered 27 August 2004, after setting out the procedural background, and in the course of discussing the documents that were before him, his Honour Wilczek J referred to the husband’s views of the family report of a court counsellor, and in particular, to a passage in an affidavit of the husband in which he said:

   “Of course I do not accept the recommendations of the Family Report.  Why else would I ask to cross-examine [the court counsellor] if I didn’t think that it’s full of bias, untruths and fabrication and I even brought it to the court’s attention of this possibility because of my previous dealings with the court right through these hearings, I’m so shocked and annoyed of what I have seen for myself and heard along the way, all I want is for a fair and unbiased treatment in these matters that I bring before this Honourable Court…”

6. His Honour reviewed the material before him in considerable detail, particularly for an interim hearing.  He then addressed the husband’s Form 44 review application and his Form 18 contravention application.  His Honour recorded that he had endeavoured to explain to the husband, who was unrepresented,  the manner in which competing interim applications are dealt with and the applicable principles espoused in such cases as C & C (1996) FLC 92-651, D & Y (1995) FLC 92-581, and, having regard to the issues in this case, relating to child welfare matters, Cowling & Cowling (1998) FLC 92-801.

7. His Honour also recorded:

   “59.  On behalf of the Child Representative it was foreshadowed that having regard to the husband’s most serious complaints, as detailed in his affidavit, against the court counsellor, arrangements had been made for [the court counsellor] to be available for cross-examination, should the court so direct.

   60.    Accordingly, I endeavoured to explain to the husband that the calling of [the court counsellor], for cross-examination, in an interim hearing, in addition to the use of that Counsellor’s report, was not the usual course in interim hearings before this court and, in that sense, already represented an indulgence in favour of the husband.”

8. After thus setting out what had happened in the hearing, Wilczek J addressed the content of the family report and the court counsellor’s oral evidence, over the course of 8 pages, before moving to a summary, final comments and orders.

9. Such detail of his Honour’s reasons as is necessary to address individual grounds of appeal is set out later.

10. A summary of the orders made by his Honour Justice Wilczek is as follows:

    (i)      The husband’s application filed 26 August 2004 be dismissed.

    (ii)     The question of the husband’s contact to the child B be reserved.

    (iii)   The husband have contact to the child K each Sunday between the hours of 10.00am and 5.00pm.

    (iv)   Contact changeover arrangements.

    (v)     That earlier orders for telephone contact continue to apply.

    (vi)   That the husband be granted leave to withdraw his Form 44 review application.

    (vii)     That the husband’s Form 18 contravention application be marked withdrawn.

    (viii)   That transcript of the evidence of the court counsellor be prepared and made available to each party.

11. The husband was also unrepresented in the appeal.  He sought to place “further evidence” before us in support of the appeal.

12. The first of the two applications he made in this regard related to the first affidavit filed by the wife in proceedings in the Court, although that affidavit was not relied upon before Wilczek J.  In effect, the husband was merely seeking to add the affidavit to the appeal book.  To this there was no objection and we permitted it.  However, the husband then did not make any specific submissions that any ground in his appeal was advanced by this addition.

13. The second application to place further evidence before us was rejected for reasons we gave at the time.

Principles applicable to this appeal

1. The appeal was against a discretionary judgment.  As was said in relation to appeals in those circumstances by Asquith LJ in Bellenden(formerly Satterthwaite  v Satterthwaite) [1948] 1 All ER 343 at 345, as to an appellate Court’s approach:

   “… It is, of course, not enough for the wife to establish that this court might, or would, have made a different order.  We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable.  It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”

2. Brennan J in Norbis & Norbis (1986) 161 CLR 513; (1986) FLC 91‑712 at 75,178 said of the “generous ambit” of a trial Judge’s discretion:

   “The ‘generous ambit within which reasonable disagreement is possible’ is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community.  The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.”

1. Though the principles applicable, both as to the determination of interim child proceedings as against applications for final orders and as to appeals against orders of either type, are the same, we think that the task of an appellant of interim orders, absent error of fact or law, in establishing a wrong exercise of discretion, is made the more difficult because of the fact that the orders have only a limited operation until trial.

The grounds of appeal

1. We intend to deal with each ground in order.

Ground 1

“1.    That Justice Wilczeck was biased in his decision.”

1. The appeal book contained no transcript of the proceedings before Wilczek J on either 27 July 2004 or 26 August 2004, save for that of the oral evidence of the court counsellor.

2. The orders made on 7 December 2004 following the directions hearing in respect of this appeal, conducted by Kay J, contains the notation:

   “IT SHOULD BE FURTHER NOTED that the appellant has been advised that his failure to provide a full transcript of the proceedings before Justice Wilczeck may well restrict the grounds that he will be able to advance before the Full Court.”

3. At no point in submissions did the husband point to anything in the transcript of the evidence of The court counsellor as indicative of bias on the part of the trial Judge.  Indeed, it seemed from his argument that the only basis for the husband’s contention of bias was that the trial Judge had not found the “facts” to be as the husband asserted them in his material.

4. There is nothing in the reasons for judgment of the learned trial Judge to indicate the slightest bias toward the wife or against the husband.  The two significant issues calling for resolution were the question of whether contact should be overnight or not, and whether contact, even if for only daytime, should be fortnightly, which the wife contended, or weekly.

5. One of these issues was resolved in terms similar to those sought by the wife, but the other was resolved as sought, albeit in the alternative, by the husband.

6. There is no merit whatsoever in this ground.

Ground 2

“2.    That Justice Wilczeck advised me and I believe inapropriately that I should drop proceedings for my Interim hearing, my Appeal 44, and for my Contravention order without first explaining to me how my rights would be affected If I agreed to this action.”

1. There being no transcript of relevance to this ground, it is only his Honour’s reasons for judgment which disclosed the circumstances surrounding the withdrawal of the husband’s Form 44 review application and the order that the husband’s Form 18 contravention application “be marked withdrawn”.

2. His Honour discussed these matters as follows:

   “THE HUSBAND’S FORM 44 REVIEW APPLICATION

   50.    In the early parts of the hearing before me I endeavoured to explain to the husband that the Form 44 Application should really be withdrawn by him because having regard to the competing Form 2 Applications that were about to be dealt with, and taking into account affidavit material that has been filed since the matter was before Judicial Registrar Ramsden in February 2004, this effectively is the equivalent to a Review Application. I think the husband ultimately understood the situation, particularly being assured that the main thrust of his dissatisfaction with the February 2004 orders, namely that he was not granted overnight contact, would be a matter that would well and truly be canvassed in the current hearing.

   THE HUSBAND’S FORM 18 CONTRAVENTION APPLICATION

   51.    I also endeavoured to explain to the husband matters relevant to his Contravention Application but ultimately, I suspect, I may not have been successful in giving the husband the appropriate understanding of his position concerning that particular application. I do not know what more I could have done.

   52.    Essentially, I explained to the husband that having regard to the very nature of a contravention application, it was not appropriate to deal with that type of application, contemporaneously with hearing the competing Form 2 and Form 2A Applications. I also indicated to the husband that in so far as his Contravention Application was concerned, it may well be that the wife, in her affidavit material, had explained what could ultimately turn out to be a “reasonable excuse” about her concerns about the time when there was a hiccup in the contact arrangements, namely that the wife considers the husband had, without notice, chosen to relocate from an area which was nearby to the wife’s residence (with both parties living relatively close to each other when the orders were formulated) to a considerable distance out of the Melbourne metropolitan area.

   53.    My perception was that the husband was finding it difficult to take the pragmatic approach that he should withdraw his Contravention Application.

   54.    I pursued further endeavours to explain the situation to the husband again, pointing out that if he wanted to pursue his Contravention Application, which he was perfectly entitled to do, I would then need to deal with that application first, before anything else, and I expressed the fear that with that approach, sufficient court time will have been taken up to then seriously bring into question whether any other application could be commenced and completed before the end of 27 July 2004 (as it was not possible to continue the matter part-heard on the following day as by that following day I would be back in the normal Judicial Duty List with anything between 10 and 15 matters in the list). I endeavoured to explain to him that his other choice was to take the view that the matters of concern to him would be canvassed in the process of dealing with the competing interim applications, and that in those circumstances he was not really doing himself a disservice in abandoning his Contravention Application.

   55.    In that the husband still seemed to be struggling with the decision, I then indicated to him I would leave the bench for 5 to 10 minutes to enable him to give the matter considered thought. I also indicated that upon my return he must give me his decision, and if he wanted to proceed with the Contravention Application then that would have to be dealt with first, and it remained to be seen what could happen to the other applications. When I returned after a short break the husband indicated that his preference was for the court to deal with the competing interim applications. And that is what occurred.

   56.    However, at the conclusion of dealing with the competing interim applications, when I reserved judgment as it was late in the day, remarks by the husband suggested that he thought that he could still pursue the Contravention Application at some other stage. I was assured by Mr Stavrakakis and Mr Eidelson that the explanation that I had given to the husband before he made his choice, was sufficiently clear for him to have understood that the choices did not involve some yet future hearing for his Contravention Application.

   57.    I should add that at all relevant times during my exchanges with the husband, it was understood that [the court counsellor] would be called for cross-examination, essentially at the behest of the husband, and that this added to the concerns of estimates of time available to deal with relevant matters on 27 July 2004.”

3. The husband failed to show that this recount is inaccurate in any particular.  In our view, there is nothing in the circumstances recounted in the paragraphs quoted, to indicate error on the part of the trial Judge.

Ground 3

“3.    That Justice Wilczeck made an error in law in not allowing me every second weekend overnights with my daughter [K] and half of all holidays, with the written evidence from my Affidavits that I filed with the court, and even from my Wifes Affidavits there was not any due reason to prevent a father of 25 years and a marriage of 27 years to prevent the children from having the above contact with their father.”

1. In the course of his review of the report of the court counsellor, Wilczek J quoted that counsellor’s opinion as:

   “63.  …(c)  Should the parties not agree to a status quo and should Mr M still pursue the question of overnight contact with [K] it is for the reasons outlined above that this counsellor could not support such an order being made at this point in time.”

2. And, as to the court counsellor’s oral evidence:

   “70.  …That [the court counsellor] was not recommending any reduction to the current contact regime.  At that same time he was not recommending any increase and in particularly, in The court counsellor’s professional view and opinion, there should be no overnight contact.”

3. His Honour also noted the evidence that K herself did not wish overnight contact.

4. In his summary, his Honour said:

   “97.  Obviously when each of the parties, at a final hearing, is tested as to their evidence in the witness box and cross-examined, perhaps, another dimension or picture might emerge, but for the purposes of the current proceedings, it is appropriate for me to rely on [the court counsellor’s] report as representing an expert and independent point of view. The court counsellor has no vested interest in the outcome, and he has no vested interest in putting things into his report other than his genuine views and opinions which are consistent with what he perceives to be the correct position, and consistent with his integrity as a long-standing highly experienced counsellor of the Family Court.

   98.  Accordingly, I am guided by his opinion that there ought to be no overnight contact at this stage. It therefore also follows that it is not feasible to contemplate extended school holiday contact such as might apply in many other cases involving a child of K’s age.”

1. All that the husband really submits in support of this ground is that the trial Judge did not prefer the case of the husband.  He does not demonstrate, nor really seek to demonstrate, error in the way in which the trial Judge approached the question.  There is no merit in the ground.

Ground 4

“4.    That Justice Wilczeck at times did not give me the full opportunity to have my say at the hearing.”

1. The husband submits that the trial Judge did not give him full opportunity to have his say at the hearing in that he found he was silenced due to lack of experience in Court procedures.  The Judge, he submits, took control and gave his views/opinions or comments to the Court, thereby throwing the husband “offguard” and discouraging him from speaking freely.

2. Again, this is a ground rendered virtually unarguable by the absence of transcript.

3. As to the principles that might have had application to a consideration of the conduct of the hearing (were transcript available) it is again relevant that his Honour was dealing with an interim application.  In C & C (1996) FLC 92-651, the Court said (at 82,678):

   “In this case, the matter was listed for a two hour hearing in a list where the parties were expected to be ready to go on.  The case management system of the Court is such that the Court and not the parties, decides the rate of progress of cases through the system.…We stress again the fact that this was not a final decision and the tests laid down for making such a decision are far more limited than the final decision as to custody.…”

4. As to the husband’s lack of experience in Court procedures and any intervention by a trial Judge, we note the passage in Re F: Litigants in Person Guidelines (2001) FLC 93-072 at paras 135 and 136:

   “135. There were occasions when his Honour did interrupt the cross-examination but the circumstances in which he did so were entirely proper.  It is very much part of the duty of a trial Judge to ensure that cross-examination is properly directed at relevant issues and is not simply left at large.  This is particularly so when irrelevant and prolix questions are asked.  The husband clearly exhibited a tendency to do so.  We think that his Honour did no more than perform this function and indeed judges are expected to do so in the management of trials.

   136.     While it is true that in Johnson’s case the Full Court said that a Judge has a duty to so far as possible provide a “level playing field” for litigants in person, he/she also has a duty to other litigants and to witnesses to ensure that trials are not unduly protracted, and that cross-examinations are not prolix and irrelevant.…”

5. However, it is impossible to apply principles in the absence of transcript and this ground must fail.

Ground 5

“5.    That I feel that my circumstances such as not being a lawyer and not knowing preceedures (sic) and processes were taken advantage of at the hearing, when I was earlier informed by a court Registrar that the court would be understanding of my lack of court knowledge and procedures, when I actually found the opposite to be the case.”

1. As the ground is expressed, it is more about a feeling that the husband says he had, rather than addressed to any particular circumstances at the hearing.  Again, the absence of transcript almost ensures the ground’s failure.

Ground 6

“6.    That the wife lied in her Affidavits and this was not taken into account by the presiding Judge at that time when it became before them.”

1. In his written submissions, the husband said that he was at no time informed that he could call upon witnesses at any stage or time of the Court hearing and that this represented misinformation. He complained that he could not bring witnesses to prove/verify/support his written affidavits.

2. These submissions did not seem necessarily connected with the ground as framed, though the implication seemed to be that, had the husband been able to put more evidence before the Court, the lies in the wife’s affidavit would have been exposed.  That, of course, is an implication that it is not presently possible to test.

3. Moreover, having regard to the interim nature of the hearing, any understanding that the husband had that he was not at liberty, for the purpose of that hearing, to call witnesses at any stage of it, was not in fact a misunderstanding.  The usual course was, and is, that evidence relied on in interim hearings, is contained in affidavits.  As recorded by Wilczek J, the husband in fact had placed before the trial Judge, the affidavit evidence of at least two supporting witnesses.

4. There is no merit in this ground.

Ground 7

“7.    That Justice Wilczecks reason for not ordering my wife to deliver my daughter to my residance (sic) was not appropriate in view off all the facts presented in the case both written and verbal, and in particular his comments that my wife would be less likely to ‘ear bash’ my daughter if delivered to [C] rather than the extra distance to my residance (sic).”

1. In his reasons for judgment given on 27 August 2004 Wilczek J had said:

   “93.  As far as contact changeover is concerned, my understanding is that the parties are content, for the time being, to continue the arrangement as is represented by orders that were relatively recently made, namely Order (3) of the orders of Judicial Registrar Ramsden of 11 June 2004.”

2. However, in his reasons given on 31 August 2004 his Honour said:

   “8.    Nevertheless, after I had adjourned Court briefly to provide the opportunity for the draft orders to be perused and when I reconvened Court, it appeared to be common ground that there was one aspect of those draft Orders that required clarification.  Namely, what should happen with regard to contact changeover in the foreseeable future.

   9.     It was also common ground that there had been a failure by those in court on 27 July 2004 to sufficiently identify future contact changeover to be an issue that required attention, and hence there had been no submissions on that topic, with the changeover issue merely mentioned in passing, indirectly, within the context of the husband’s then pending Contravention Application.

   10.    Thus, it remained to be a problem that required to be solved, as the orders that presently apply with regard to changeover are consent orders, namely Order (3) of the Orders by Judicial Registrar Ramsden of 11 June 2004 which, however, only referred to what should occur “during the 2004 football season”.”

3. His Honour then addressed the competing submissions about changeover and said:

   “13.  The wife’s argument has merit in my view.  She points to the fact that at the time the December 2003 orders were made, which effectively result in an equal sharing arrangement for the purposes of contact travel, both parties lived very close to each other.  Thereafter, and this is common ground, the husband [changed his residence] and accordingly new facts and circumstances have arisen.

   14.     The wife’s affidavit material which was filed in relation to the other issues that were canvassed on 27 July 2004, and referred to in my written Reasons, set out matters concerning the wife’s health and difficulties with finances and transport.”

   …

   16.The husband’s position, on the contact changeover issue, continued to be, in many respects, as it had been in relation to other issues in the July hearing.  One of the husband’s strong and regular and persistent complaints against the wife is that she has embarked upon, and continues to pursue a course of conduct designed to alienate the children from him.  Not only, according to the husband, does the wife put negative thoughts into the children’s minds about their father, but that that also goes for peripheral things that involve the husband including the husband’s circumstances and his living arrangements and accommodation.

   17.On the topic of contact changeover, [the Child Representative] conceded that there was very little that he could put to the Court that might be of assistance and, consistent with my view, [the Child Representative] also agreed that there was very little that each of the parties had put to me.

   18.Ultimately I took the view that it would be preferable for the husband to be responsible for the contact travelling in the sense that, as the system presently applies according to the consent orders, such system should continue, because it would have the benefit of protecting the child from the situation that the husband alleges is occurring (if it is occurring).

   19.By that I mean that if the husband considers that ultimately he will be able to prove, at some final hearing, that the wife is alienating the children (as I put to him during exchanges), if she is forced by court order to drive K to [the husband’s residence], then there would be more opportunity for the child to pick up negative impressions from her mother during that approximately 40 minute trip.  On the other hand, if the husband collects the child then he has the opportunity, during that trip from the commencement of contact, to engage in conversation and establish rapport with K right from the beginning of each contact period.  It is on that basis that I then finalised the orders in relation to the proceedings on 27 July 2004.”

4. The husband did not point to any error of fact or of principle in Wilczek J’s consideration of the issue of changeover.  Having regard to what we have already said about the principles applicable to this appeal, we consider the order made by his Honour with regard to changeover, for the reasons he gave, is well within his discretion.

Ground 8

“8.    That I no longer have available transport to be able to pick my daughter up from [C], and that I am having to spend far too much time walking and catching buses and trains and taxis in order to collect and return my daughter within the court ordered times of between 10am and 5pm and also I simply do not have the available money to do this.”

1. This is really a question of further evidence relating to the availability to the husband of transport to enable him to effect changeovers as ordered.  Having regard to the interim nature of the proceedings, and the usually numerous factors to be considered when addressing contact orders, including the mechanics of them, it is not appropriate for this Court to entertain such a ground in the absence of a successful application to put further evidence before the Court.

A proposed further ground?

1. In his summary of argument, the husband referred to a ninth ground of appeal.  If anything, this was in the nature of a request for enforcement of a restraint against the wife and as such, did not amount to a ground of appeal at all.

Conclusion

1. It was for the aforegoing reasons that the appeal was dismissed.

Costs

1. Counsel for the wife sought an order that the husband pay her costs of and incidental to the appeal.  He relied upon:

   (i)     the complete failure of the appeal;

   (ii)   that on three occasions letters had been sent on behalf of the wife to the husband suggesting that the appeal would fail and on two of those occasions, the husband was advised that in the event of the appeal’s failure, costs would be sought, on one occasion at least, it being indicated that costs would be sought on an indemnity basis;

   (iii)     the failure of a number of the grounds of appeal substantially because of the absence of transcript, as to which the husband had been forewarned.

2. The wife is in receipt of legal aid but the amount of the grant has been virtually expended.  The wife sought total costs of $2,780, which we did not understand to be, and which having regard to the costs scale, would not seem to be, on an indemnity basis.

3. The child representative sought costs.  Counsel for the Child Representative referred to the finite nature of the Victorian Legal Aid Fund and to the fact of notice of an application for costs in the event of the failure of the appeal, conveyed to the husband in a summary of argument.  He sought $2,675.

4. In view of the content of s 117(5) of the Family Law Act 1975 (Cth), as amended, we disregard the funding situation of the Legal Aid Fund.

5. In response, the husband said that he lacked means to pay.

6. We consider that, particularly in view of the result of the appeal, the grounds, and the absence of transcript, the husband ought pay the costs of the wife and of the child representative as sought, (both amounts appearing reasonable).

ORDERS

1. That the appeal filed 22 September 2004 be dismissed.

2. That the appellant husband pay the costs of the respondent wife and of the child representative of and incidental to the appeal, fixed in the case of the wife at $2,780 and in the case of the child representative at $2,675.

I certify that the 58 preceding
 Paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd: 

Associate
19 October 2005