Markwell & Ranwick & Anor (No 3)
[2020] FamCAFC 318
•18 December 2020
FAMILY COURT OF AUSTRALIA
| MARKWELL & RANWICK AND ANOR (NO. 3) | [2020] FamCAFC 318 |
| FAMILY LAW – APPEAL – PARENTING – RELOCATION – Where the mother appeals against orders that she return the children to live in closer proximity to the children’s fathers – Where the appeal raises no question of general principle – Subject to one matter, reasons given in short form pursuant to s 94AAA(7) of the Family Law Act 1975 (Cth) – No error established – Appeal dismissed – No order as to costs. FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Where the mother’s recusal application was not considered before judgment was delivered – Requirement to consider challenges to the constitution of the court before other matters – Where none of the complaints were made contemporaneously – Waiver of right to object – No procedural unfairness established. |
| Family Law Act 1975 (Cth) Pt VII, ss 69ZN, 69ZQ, 94AAA |
| Antoun v The Queen (2006) 224 ALR 51; [2006] HCA 2 Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Johnson v Johnson (1997) FLC 92-764; [1997] FamCA 32 Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 Re Alley, Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 64 ALR 6 Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44 |
| APPELLANT: | Ms Markwell |
| FIRST RESPONDENT: | Mr Ranwick |
| SECOND RESPONDENT: | Mr Solberg |
| INDEPENDENT CHILDREN’S LAWYER | Barker & Barker |
| FILE NUMBER: | CAC | 1533 | of | 2014 |
| APPEAL NUMBERS: | EAA EAA | 104 125 | of of | 2020 2020 |
| DATE DELIVERED: | 18 December 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney (via video link) |
| JUDGMENT OF: | Ainslie-Wallace, Ryan & Aldridge JJ |
| HEARING DATE: | 2 December 2020 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 30 June 2020; 3 September 2020 |
| LOWER COURT MNC: | [2020] FCCA 1751 [2020] FCCA 2462 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Winfield |
| SOLICITOR FOR THE APPELLANT: | Derham Houston Lawyers |
| SOLICITOR FOR THE FIRST RESPONDENT: | Evans Family Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms Christie SC |
| SOLICITOR FOR THE SECOND RESPONDENT: | Chamberlains |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Barker & Barker |
Orders
The Application in an Appeal filed on 30 November 2020 be dismissed.
The appeal (EAA 104 of 2020) be dismissed.
There be no order as to costs.
IT IS NOTED:
A.Appeal EAA 125 of 2020 was withdrawn.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Markwell & Ranwick and Anor (No. 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EAA 104 of 2020 & EAA 125 of 2020
File Number: CAC 1533 of 2014
| Ms Markwell |
Appellant
And
| Mr Ranwick |
First Respondent
And
| Mr Solberg |
Second Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
By Amended Notice of Appeal filed on 23 September 2020, Ms Markwell (“the mother”) appeals from a suite of parenting orders made pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) on 30 June 2020. At the commencement of the hearing before us, the mother discontinued a related appeal from orders made on 7 August 2020 dismissing her application to stay the first mentioned orders. The parenting orders relate to the mother’s daughters, B Solberg, born in 2010 (“B”) and D Ranwick, born in 2017 (“D”), (together “the children”). Mr Ranwick is D’s father (“D’s father”) and the first respondent in the appeal. Mr Solberg is B’s father (“B’s father”) and the second respondent in the appeal. Each of the fathers seeks that the appeal be dismissed.
An Independent Children’s Lawyer (“ICL”) was appointed to represent the children’s interests. The ICL contends that the appeal should be dismissed.
The appeal will be dismissed. Save for one matter, the Court is of the unanimous opinion that it does not raise any question of general principle. Subject to that one matter, the Court’s reasons in short form follow (s 94AAA(7) of the Act).
Brief overview
The mother and B’s father met in 2009. They commenced living together in Town F in about late 2009 or early 2010. B was born in 2010 and she was four years of age when, in September 2014, her parents separated. When the mother made it difficult for B’s father to see their daughter, he commenced proceedings for parenting orders which were resolved by consent orders which provided for the mother to have sole parental responsibility for B, for B to live with the mother and spend time with her father.
In the meantime, the mother commenced a relationship with D’s father and they began living together in Town E, NSW, in mid‑2016. D was born some 12 months later. She was 12 months old when her parents separated.
Without forewarning the children’s fathers, the day after the mother and D’s father separated, the mother took the children to live in City J, Victoria. City J is approximately 700 kilometres from both Town E and Town F, NSW, where the children’s fathers live.
In quick time, each of the fathers commenced proceedings for their child’s return. The applications were consolidated and there followed multiple interim applications and hearings with the mother wishing to remain in City J and the fathers pressing for the children’s return. Notwithstanding orders which required the mother to return the children, she failed to do so and there was considerable activity, including contravention applications, before the mother moved to Town R. Town R is a small town approximately halfway between Town E and Town F. In the meantime, a recovery order was made in relation to B and for some months, B lived with her father. Once the mother moved to Town R, both children lived with her. Although the mother moved to Town R, she retained a rental property in City J.
Following an eight day hearing heard in a number of tranches, the primary judge determined that:
·the children have a close and loving relationship with their mother who has always been their primary carer [394];
·each child has a positive and affectionate relationship with her father [396];
·separating the children from the mother is likely to be highly distressing to both children [405];
·each of the fathers has the capacity to provide for the full range of the children’s needs [416];
·although in the mother’s care the children were well fed, clothed and housed, she had “repeatedly demonstrated an inability to meet the children’s emotional, psychological and developmental need to have a healthy and meaningful relationship with their fathers” [410];
·permitting the mother to relocate the children to City J “would likely spell the end of a meaningful relationship between the children and their fathers” given that the mother cannot be trusted to comply with orders [428];
·although the fathers established a strong case to have their daughters live with them, it was the effect on the children of being separated from their primary carer in such a significant way that weighed against those outcomes [430]–[432];
·given B’s age, she was likely to perceive an equal time arrangement as “fair” and, as the mother said she would live in Canberra, which is where B’s father lives, an equal time arrangement would be in that child’s best interests [430]; and
·D, at only three years of age, would comfortably manage an increase in her time with her father but the risk to her emotional and psychological welfare of being removed from her mother’s primary care, tipped the scales against changing her primary carer [432].
In the event that the mother did not move to Canberra, B would live with her father and, in the event that the mother moved further from Town E than Canberra, D would live with her father. The primary judge explained that “[t]his is because the risks arising from being separated from her primary attachment figure will be outweighed by the risks that flow from living only with her mother without the ameliorating influence of regular and substantial time with her father” [436].
Although it does not do justice to her Honour’s comprehensive analysis of a large volume of evidence and the intricate issues in the case, it is useful to record findings made in relation to the mother’s approach to B’s contact with her father. The passage which follows provides a simple vignette of the lengths to which the mother went to disrupt the children’s relationships with their fathers and which amply justify the finding, which is unchallenged in the appeal, that the mother “is incapable of genuinely supporting the children’s relationship with their fathers” [428].
Her Honour said:
411.I am satisfied on the evidence, including that of [D’s father], that the mother employed a number of strategies to interfere with the relationship between B and her father. Some of those strategies were passive, such as not answering the phone when [B’s father] rang to speak to B. Some were more active, such as telling B she could pretend to be sick so she did not have to go with her father. The most egregious were the mother’s allegations that [B’s father] had sexually abused B. It is not possible for me to determine on the evidence whether the mother ever really believed B had been sexually abused by her father or was at risk of being abused. She willingly offered for B to spend extended time with her father after she moved to City J. This suggests that she was satisfied B was not at risk in her father’s care or, alternatively, that her desire to stay in City J overrode any concerns she had about B’s safety. The weight of the evidence suggests the former.
These findings more than adequately expose her Honour’s reasons for the orders. Stated broadly, the 30 June 2020 orders provide for:
·the mother and B’s father to have equal shared parental responsibility for their daughter (Order 2);
·B to attend school in Canberra (Order 4); and
·B to spend equal time with her parents on a week about basis in school terms if both parents are living in the Canberra district, otherwise, for B to live with her father and spend time with the mother as they agree until the mother moves to Canberra (Orders 6 and 7).
In relation to D, those orders provide for:
·the mother and D’s father to have equal shared parental responsibility for their daughter (Order 11); and
·D to live with the mother if the mother lives within 200 kilometres of Town E and spend time with her father, with time to coincide with B being in the care of her father. Otherwise, if the mother lives more than 200 kilometres from Town E, then D is to live with her father and spend time with the mother during school terms as agreed between D’s parents (Orders 12 and 14).
The mother was ordered to take reasonable steps to engage with a psychiatrist and clinical psychologist for the purpose of mental health treatment and therapy (Order 27).
Grounds of appeal
It needs to be understood that this is an appeal against the exercise of discretion, to be determined in accordance with the principles set out in House v The King (1936) 55 CLR 499. A different view by an appellate court only as to matters of weight by no means justifies the reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513).
Before we consider the grounds of appeal, it is necessary to deal with an Application in an Appeal filed by the mother on 30 September 2020. By this application, the mother sought to adduce evidence of a snippet of a recording she made during her interview with the family report writer and a transcript of that recording (which was not yet available). In circumstances where neither the recording nor the transcript of it were put to the family report writer in the court below, as we said during the appeal, the application to adduce this further evidence and because of it, to reject the evidence of the family report writer, would be dismissed.
The mother presented 18 grounds of appeal. The grounds were broad and too often failed to articulate the asserted error with precision. In relation to a number of the grounds, the Summary of Argument filed in support of the appeal took the matter no further. In others, the Summary of Argument strayed well beyond the scope of the ground/s and too often it misstated what occurred. Thus, it came as no surprise that counsel who appeared for the mother on the appeal, but who is not the author of her Summary of Argument, abandoned a large number of the particulars and generalised “errors of law”. As the abandoned contentions were unsustainable no criticism is or could be made of counsel’s decision to not argue the inarguable.
Ultimately the challenges were distilled into assertions that the primary judge erred by:
·denying the mother procedural fairness, including by failing to apply the guidelines in respect of litigants in person as set out in Johnson v Johnson (1997) FLC 92-764;
·failing to determine the mother’s application filed on 9 June 2020 that the primary judge recuse herself prior to the delivery of judgment on 30 June 2020;
·failing to allow the mother to reopen the proceedings to adduce evidence of a recording she made of her interview with the family report writer;
·permitting Dr H, single expert psychiatrist, to give evidence before B’s father;
·finding that the mother led various people to believe she has a law degree;
·finding that the mother gave evidence that on a particular occasion D’s father was smoking when she said he was smirking;
·making adverse findings as to the mother’s credit;
·making orders which gave the mother 18 days to move to Canberra and were thus not reasonably practicable; and
·failing to give adequate reasons.
The recusal application
An intermediate appellate court dealing with allegations of apprehended bias, coupled with other discrete grounds of appeal, must deal with the issue of bias first. This is because actual or apprehended bias strikes at the validity of the trial process and its outcome. Where a defect in the administration of justice has been found to have occurred, even if a judge is found to be correct, the orders must be set aside (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577 at 611). Unless this is done, the impression created by the course that follows remains and inevitably adversely affects public confidence in the administration of justice (Antoun v The Queen (2006) 224 ALR 51 at 52).
The test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias is “whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide” (Johnson v Johnson (2000) 201 CLR 488 at [11]) (footnote omitted). In order to satisfy that test, the High Court in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 said at [8] as follows:
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.
As has already been mentioned, on 9 June 2020 the mother filed an application that the primary judge recuse herself and that the proceedings be transferred from the Federal Circuit Court to the Family Court in Melbourne. In support of that application the mother filed an affidavit the same day which set out conduct by the primary judge said to justify recusal. Annexure 1 to the affidavit comprises a list of 98 instances between 30 July 2018 and 24 April 2020 where the primary judge spoke or ruled in a manner which the mother said constituted disqualifying conduct. The gravamen of the complaint is that the primary judge should have determined the recusal application before delivering judgment. We agree that for the same reason an intermediate court of appeal is required to consider a challenge to the constitution of the court before going on to consider other grounds, a judge is required to determine a challenge to the judge presiding over a case before going on to decide the case. However, that is not the end of the matter.
Before us, there was some uncertainty about whether the primary judge was aware of the recusal application. However, the trial reasons at [457(b)] and Order 30 establish that she did know about it. The primary judge decided that “I do not need to consider [it] now” [458] and directed that the application be listed for hearing before her on 20 July 2020.
It is uncontroversial that when the matter came before the primary judge on 20 July 2020 the recusal application was withdrawn. Although the fathers and the ICL submit that the application having been withdrawn, the mother cannot now complain about the approach taken by the primary judge to it, we think the situation is not that clear. Thus, and for an abundance of caution, we have examined the 98 events which underpin the recusal application. Properly understood, the list is no more than a schedule of unremarkable rulings and statements that the mother seems to feel were disadvantageous to her. Some are quite misleading and give a selective and incomplete account of what occurred. There are more ways of describing the unfair complaints raised about the judge but there are simply too many to list here.
It needs to be understood that none of the contentious remarks and rulings resulted in a contemporaneous recusal application and many occurred on occasions when the mother had legal representation and almost all occurred prior to the last occasion on which the mother was represented by counsel. It is trite that a litigant is required to bring a recusal application in a timely manner and, if the application is not made at once, it must be made as soon as is reasonably practicable (Re Alley, Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1985) 64 ALR 6 at 7). Furthermore, that where a party fails to raise an objection when the issue arises they may be taken to have waived the right to object (Vakauta v Kelly (1989) 167 CLR 568). The point being, that the judge should be given a prompt opportunity to dispel any misconceptions that may have arisen and to avoid the problems that arise if a judge continues to hear a case that they should not.
In our view, not only are the matters about which the mother complains prior to the last occasion on which counsel appeared for her (23 April 2020) incapable of troubling the appropriately informed fictional bystander, but by failing to raise the matters with the judge in a timely way, the mother waived her right to do so.
As to the balance of the matters, the mother waited another six weeks from when judgment was again reserved before the recusal application was filed. Examination of the trial transcript shows that the mother knew as at 22 April 2020 that the primary judge had substantially completed the judgment. Furthermore, that the primary judge and all parties and the ICL were concerned that judgment be given as quickly as possible. In other words, the mother knew that the primary judge would resume the judgment and aimed to give her reasons as quickly as possible. For the mother to wait some six weeks to present the application was unfair and too long. Even if the conduct of which the mother complained demonstrated some possible basis to found the recusal application (it does not), the failure to bring the application in a timely manner amounts to her having waived the right to do so.
As the primary judge said in relation to another application filed on the closing day of the reopened hearing:
[THE MOTHER]: When we were before your Honour last Thursday I foreshadowed that I was going to file an application in a case in relation to the family report.
HER HONOUR: Okay. All right.
[THE MOTHER]: I didn’t have an opportunity yesterday.
HER HONOUR: Well, I won’t – I won’t be dealing with it today but it just – I feel like this case never ends. We’ve just, you know, got one set of submissions to go and you filed another application. So I won’t be dealing with it today, I’m just going to ask the registrar to omit it.
(Transcript 24 April 2020, p.228 lines 11–21)
Properly understood, the recusal application was a thinly veiled attempt to derail the prospect of a judgment which the mother suspected would not give her what she wanted. It was an abuse of the Court’s process and in the unusual circumstances of this case, the primary judge’s failure to determine the recusal application before proceeding to judgment does not justify appellate intervention.
The other challenges
So as to further aid understanding of our decision to invoke s 94AAA(7) of the Act, we will discuss two grounds of appeal which, in our opinion, provide the flavour of the rest.
Adjournment application
Under the rubric of Grounds 1, 2 and 13, the mother contends that the primary judge erred in refusing the mother’s oral application on 22 April 2020 to adjourn the reopened hearing. In support of this contention, the mother calls in aid an unspecified guideline concerning the approach to litigants in person and asserts that the decision to refuse the adjournment resulted in a procedurally unfair hearing. As we can understand it, the unfairness is said to arise because the mother was denied the opportunity to follow up the production of documents by NSW Police to a subpoena issued by D’s father. Some context is required in order to understand this challenge.
Following a five day defended hearing, on 15 October 2019, the primary judge reserved her decision. On 11 March 2020, D’s father filed an application to reopen the hearing because problems had arisen in relation to contact with his daughter. His application and affidavit in support were served on the mother on 16 March 2020. The application to reopen was listed before the primary judge on 16 April 2020. The trial transcript shows that the mother did not oppose the hearing being reopened to adduce further evidence (Transcript 16 April 2020, p.3 lines 39–40).
The primary judge then explored options for when the reopened hearing would commence. Given the notorious dockets in the Federal Circuit Court, it is no surprise that the options were limited. Thus the primary judge offered to forego judgment writing time the following week, otherwise the reopened hearing would not be before June 2020 at the earliest. The following exchange then took place:
HER HONOUR: But if I decide to reopen, presumably, you would – you know, it may be that they can process that quite quickly. My problem is if it – I go beyond next week it’s going to be some time before I’ve got further time out of court, and I don’t want to delay the matter further.
[THE MOTHER]: I’m certainly opposed to any further delays also, your Honour, given the time that it has been since ---
HER HONOUR: Yes.
[THE MOTHER]: --- the final hearing.
HER HONOUR: All right.
[THE MOTHER]: So I’m certainly not opposed to that…
(Transcript 16 April 2020, p.4 lines 15–29)
Thus it was agreed that the reopened hearing would commence on 22 April 2020 for two days. By agreement, directions were made for affidavits to be filed, which they were.
At the commencement of the hearing on 22 April 2020 the mother appeared and was assisted by counsel under the legal aid cross‑examination scheme. The mother made an adjournment application in the following terms:
[THE MOTHER]: Yes. Thank you, your Honour. I would just like to first of all raise – it was brought to my attention in a brief meeting with counsel this morning, which [D’s father’s solicitor] has already indicated, that the subpoena didn’t catch anything, so I will be objecting on the basis that both parties – or all parties, in fact, acknowledge that there has been police involvement and I do say – it is my submission that that is prudent that the parties and the court have the benefit of anything that that subpoena may contain, particularly in light of one of the paragraphs of [B’s father’s] evidence.
The other issue that I have, your Honour, [D’s father’s solicitor] made note of an aide‑mémoire that had been sent to the parties. This had only just been brought to my attention this morning by counsel as well, so I hadn’t had the benefit of seeing this document or knowing about this document. I understand that [my solicitor] has sent it to me and it’s likely sitting in my inbox but I haven’t checked my inbox between finishing the meeting and making sure the girls are okay and then coming back to court here, so I think, in – you know, in the light of fairness, not having had [an] opportunity to look at that material or go through it, I’m just not as prepared as I would like to be and what I feel I should be, your Honour.
HER HONOUR: Any other bases for your adjournment application?
[THE MOTHER]: I guess the only other one, your Honour, is that, your Honour, this was heard last Thursday and as a self-represented litigant and, you know, my priority is B and D, so making sure that they’re okay and that they’re not impacted by my time, which has been very difficult, essentially preparing a final hearing with the limited time, I would really appreciate and I would really, really like the court to consider an adjournment on the grounds, just to give me some time to prepare so I’m not rushed, your Honour. I hope that the parties can appreciate that.
(Transcript 22 April 2020, p.9 line 28 to p.10 line 7)
The other parties and the ICL opposed an adjournment. Each was concerned about the deleterious impact on the parties and the children if the proceedings were further delayed. The primary judge shared those concerns and, given that the parties could give direct evidence about matters referred to police, the primary judge was not concerned that the police records had not been produced.
When regard is had to s 69ZN(4) of the Act, which requires the court to “actively direct, control and manage the conduct of the proceedings”, s 69ZQ(1)(c) which imposes a duty on the court to make directions “about the timing of steps that are to be taken in the proceedings” and, pivotally s 69ZN(7) which requires the court to conduct parenting proceedings “without undue delay and with as little formality, and legal technicality and form, as possible”, it is clear that the decision to refuse the adjournment was one of orthodox and necessary trial management.
Furthermore, the reopened hearing continued for three days. Thus, the mother had an appropriate amount of time to familiarise herself with the aide‑mémoire and to follow up any outstanding documents with NSW Police which she considered pertinent. Before we leave this issue, it should not be overlooked that the application to reopen was served on the mother approximately five weeks prior to the reopened hearing. Yet, the mother did not herself issue a subpoena to NSW Police for the documents sought by D’s father. Again, the mother had ample time within which to pursue those documents and her failure to do so reinforces the correctness of the decision to refuse the adjournment.
Findings of fact
Turning then to the challenges raised against findings of fact of which there are many. Considerable time was taken in relation to findings contained in [243] of the trial reasons to show that the mother had not sought to persuade the people named that she has a law degree. The significance of [243] is that it contributed to her Honour’s conclusion as to the mother’s unreliability as a witness and “that in any dispute of fact between the mother and any other witness” the other witness was “generally preferred” [252].
Paragraph [243] of the trial reasons provides:
The third aspect affecting the mother’s credibility was her overstating her qualifications. The mother has no tertiary qualifications but has persuaded a range of people that she does. [D’s father] said he understood during his relationship with the mother that she had several university degrees, one of which was a law degree. The mother’s general practitioner, her psychologist, Ms HH, her former employer and friend, Mr V and her friend, Ms T, all believed the mother has a law degree. It seems likely on this evidence that the mother led them to believe that. The mother told [the family report writer] that she wanted to complete her law degree, implying she was well advanced in that degree. In her trial affidavit, the mother said: “In the event I am permitted to relocate with the children to City J I intend to recommence my study of law at KK University in City L, Victoria.”
(Footnote omitted)
It will be immediately apparent that the detailed analysis of the evidence given by D’s father, Ms HH, Mr V and Ms T as to what they knew about the mother’s qualifications was a waste of time. This is because, as the final sentence of [243] reveals, the mother herself deposed to studying law at the named university. The mother’s evidence was wrong and notably no challenge is made to the finding at [244] that the mother has never enrolled in a law degree. In advancing this argument, counsel for the mother skilfully sought to avoid the other examples discussed in the trial reasons where the mother’s evidence proved to be unreliable and plainly untrue. For example, no challenge was made to the finding at [245]:
The mother also told various people that she has a science degree, majoring in psychology, or that she was studying towards one. She filed affidavits in previous proceedings on 10 March 2015 and 7 December 2016 in which she deposed to being enrolled in a science degree. She conceded in cross‑examination in the current proceedings that she has never been enrolled in a science degree.
(Footnote omitted)
The nature and quality of the other challenges made to the findings of fact were no better.
Conclusion and costs
It has not been demonstrated to our satisfaction that, in reaching her decision, the primary judge erred in the approach she adopted or in principle, that she failed to take into account any relevant factor, that she took into account any irrelevant factor, that she was mistaken as to the facts or that the result embodied in the orders was clearly wrong or unreasonable or plainly unjust.
All that remains is for us acknowledge that counsel for the mother put all submissions which, in the circumstances of this case, could possibly be made having regard to the applicable appellate principles and the trial record.
Neither of the fathers nor the ICL sought costs against the mother and an order will be made that there be no order as to costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Ainslie‑Wallace, Ryan & Aldridge JJ) delivered on 18 December 2020.
Associate:
Date: 18 December 2020
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