Ms R v Mr R

[2002] FamCA 323

[2002] FamCA 323

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA  Appeal No. WA 23 of 2001

AT PERTH  File No.  PT 1897 of 2000

BETWEEN:

Ms R

Appellant Wife

- and -

Mr R

Respondent Husband

REASONS FOR JUDGMENT OF THE FULL COURT

BEFORE:  Finn, Coleman and Guest JJ

HEARD:  2 May 2002

ORDERS MADE:  2 May 2002
PUBLICATION OF REASONS
FOR JUDGMENT:  10 May 2002

APPEARANCES:

Mr Dowding of Counsel and Ms Jenour of Counsel (instructed by Holden and Barlow) appeared on behalf of the Appellant Wife.

Mr Hedges of Counsel (instructed by Paterson and Dowding) appeared on behalf of the Respondent Husband.

CHILDREN – Residence – interim orders - whether trial Judge erred in varying the week-about shared residence arrangement which had been in place for a significant period of time -

APPLICATION TO ADDUCE FURTHER EVIDENCE – s. 93A(2) Family Law Act 1975 - CDJ v VAJ (1999) 197 CLR 172; (1998) FLC 92-828 applied

This was an appeal by the wife against an interim residence order made by Penny J on 8 November 2001 whereby her Honour ordered that the two children of the marriage reside with the husband each week from 5 pm Sunday to 5 pm Friday and with the wife from 5 pm Friday to 5 pm Sunday. The effect of this order was to vary an earlier interim residence order made by Penny J on 23 May 2000 whereby a shared “week-about” residence arrangement for the two children of the marriage was put in place.

On 23 November 2001 a stay was granted of her Honour’s orders, with the result that the arrangement whereby the children spent week-about with each parent remained in place when the appeal came before the Full Court for hearing on 2 May 2002.

At the hearing of the appeal the wife made an application to adduce further evidence which, in summary, related to the severity of the children’s disabilities (the trial Judge had found that the husband did not recognise or accept the severity of their disabilities); the wife’s involvement in a program to assist one of the children; the wife’s capacity to now drive the children in a motor vehicle; and the distress exhibited by the children when leaving the wife.

HELD in allowing the appeal on the basis of the further evidence:

1. The fact that the two children of the marriage have for the last two years been living week-about with each parent, combined with the further evidence, satisfied the Full Court that the order of the trial Judge varying the interim week-about shared residence arrangement was now erroneous and accordingly, should be set aside. (The effect of setting aside that order was that the original interim order providing for week-about shared residence was revived). (CDJ v VAJ (1999) 197 CLR 172; (1998) FLC 92-828 applied).

Husband to pay wife’s costs of and incidental to the appeal

Introduction

1. On 2 May 2002 this Full Court made orders whereby we:

   ·    granted an application by the wife to adduce further evidence at the hearing of an appeal by her against an order made by Penny J on 8 November 2001;

   ·    allowed the appeal on the basis of that further evidence; and

   ·    set aside the order which was the subject of the appeal and which had provided, in effect, that pending further order the two children of the marriage of the wife and the husband should reside with the husband each week and the wife each weekend.

1. The effect of our setting aside the order which was the subject of the appeal, was to revive the operation of an order made earlier by Penny J on 23 May 2000, which was to the effect that, pending further order, the two children should reside with each party on a week-about basis.

1. On 2 May 2002 we also made orders requiring the husband to pay the wife’s costs of, and incidental to, the appeal, and requiring the wife to pay the husband’s costs of an application by the wife for an adjournment of the hearing of the appeal (which we had heard and dismissed on 29 April 2002).

1. When we made our various orders on 2 May 2002, time did not permit us to give our reasons for our orders.  We therefore undertook to provide written reasons in due course.  These are our reasons.

The history of this matter

1. The husband and the wife separated in March 2000, with the husband remaining in the former matrimonial home and the wife living elsewhere with the two children of the marriage, a son, R, born in 1995 and a daughter, M, born in 1996.  Both children have significant language disabilities. 

1. As a result of interim orders made by Penny J on 23 May 2000, a shared “week-about” residence arrangement for the children was put in place.

1. In early 2001 both the husband and the wife filed applications seeking sole residence in his or her favour on an interim basis.  Those applications for variation of the interim residence arrangements, together with certain other applications concerning financial matters, were heard by Penny J on 1 and 5 June 2001.

1. Her Honour delivered her judgment in relation both to the interim residence arrangements and the financial matters on 8 November 2001.  In relation to the interim residence arrangements, she ordered that the children should reside with the husband each week from 5 p.m. Sunday to 5 p.m. Friday and with the wife from 5 p.m. Friday to 5 p.m. Sunday.

1. On 13 November 2001, the wife filed an appeal against her Honour’s orders varying the interim residence arrangements.

1. On 23 November 2001, a stay was granted of her Honour’s orders of 8 November 2001, with the result that the arrangement whereby the children spent week-about with each parent, which had by then been in place since late May 2000, remained in place.

1. The wife’s appeal was listed for hearing before a Full Court sitting in Melbourne on 11 December 2001.  However the Full Court adjourned the hearing apparently on the basis that within a few months, there would be a final trial of the residence issue.

1. When the trial did not proceed as scheduled in April 2002 due to the lack of an available judge, and was adjourned to October 2002, the appeal was re-listed for hearing in the sittings of the Full Court in Perth commencing on 29 April 2002.  There is some issue about exactly how the listing of the appeal in the Perth sittings of the Full Court actually came about, but it is unnecessary to concern ourselves with that matter.

1. On 29 April 2002, an application was made to us by the wife for a further adjournment of the hearing of the appeal essentially on the basis that the current residence arrangements had been in existence for nearly two years and for practical reasons of cost and convenience associated with the fact that a final trial is currently scheduled for October 2002.  However, for reasons which we gave at that time, we refused that application.

1. Accordingly, the wife’s appeal, together with an application by her to adduce further evidence, came before us for hearing on 2 May 2002.  On that day we dealt first with the wife’s application to adduce further evidence, which was opposed by the husband.  In the event, however, we granted that application and allowed the wife’s appeal on the basis that the further evidence satisfied us that the order of the trial Judge varying the interim residence arrangement from a week-about shared arrangement was erroneous.

The judgment of Penny J of 8 November 2001

1. In order to explain our reasons for admitting the further evidence and allowing the appeal on the basis of that evidence, it is necessary to consider the reasons why Penny J considered that she should alter the shared week-about arrangement to an arrangement whereby the children lived primarily with the husband.

1. In her judgment, after setting out the factual background, Penny J referred to the criteria which the Full Court decision in Cowling (1998) FLC 92-801 requires be taken into account in the determination of applications for interim parenting orders, and which are as follows:

   1.In determining what parenting order should be made, the Court must have regard to the best interests of the child as the paramount consideration.

   2.The best interests of the child will normally be best met by ensuring stability in the life of the child pending full hearing of all relevant issues.

   3.Where the evidence establishes that a child is living in an environment in which he or she is well settled, the child’s stability will usually be promoted by the making of an order which continues that arrangement until trial.

   4.The Court should place such weight upon the importance of retaining the child’s living arrangements as it sees fit.

   5.Where the evidence does not establish that at the date of hearing the child is living in an environment in which he or she is well settled, some limited evaluation of the relevant matters referred to in s 68F(2) needs to be undertaken.

1. Her Honour then explained that because neither parent wanted the week-about arrangement to continue, it was not possible to retain those arrangements. There would therefore have to be a change which would cause some instability for the children, and thus some limited consideration of the matters contained in s.68F(2) of the Family Law Act 1975 (“the Act”) was necessary.

1. In considering the s.68F(2) matters, her Honour said that the children had not recorded any particular wishes in relation to residing with either parent, although she also referred to certain evidence which indicated that the son was distressed at separating from the wife.

1. In relation to the children’s relationships, her Honour said:

   14.     It appears the children have a very good relationship with the wife, and with their half sisters who reside with them.  I am satisfied the children have a very good relationship with the husband, and with the husband’s extended family members.        

1. As to the effect of any change in the children’s circumstances, her Honour concluded in paragraph 15 of her judgment that as the children had managed under the week-about arrangement with not seeing the parent with whom they were not then living for up to one week, they would be unlikely to suffer a difficulty with a change from that arrangement, so long as they had contact with the non-resident parent weekly.

1. As to the practical difficulty and expense of contact, her Honour said:

   16.     There is no practical difficulty and expense in the children having contact with either parent.  While there have been some difficulties at handover, those matters have now been largely resolved with the husband’s daughter collecting the children when they reside with the husband, and the husband returning them.

1. In relation to the matter of each parent’s capacity to provide for the needs of the children, her Honour referred to the fact that the husband, despite having originally had no experience of looking after the children on his own for lengthy periods, had now had an opportunity to prove himself and that there was “no real criticism” of his ability to do so.  Her Honour also referred to some difficulties which the wife had experienced in getting the son, R, to separate from her for the purpose of attending pre-school.  Her Honour then went on to refer to the position in relation to the children’s disabilities:

   23.      The children, [R] and [M], both have significant disabilities.  [R] suffers from severe receptive and expressive language disability, which is global in nature.  He suffers from severe phonological processing difficulty.  He attends the [B Centre] in [Suburb C].  [R’s] language skills have improved since being at the school, but still amount to a significant disability.  [M] has been diagnosed with Pervasive Developmental Disorder, Not Otherwise Specified.  She presents with severely delayed receptive and expressive language skills.  Her language profile is consistent with diagnosis within the autism spectrum.  [M] attends the [D] Primary School and an aide is employed to assist her.  While [M] has shown some progress, she is very significantly disabled.  She has had significant treatment from ISSAD.  There has been some dispute between the husband and wife over the last 17 months as to the extent of [M’s] disabilities and the treatment required by her.

   24.     I am not convinced that the husband accepts that the children’s disabilities are as serious as the health professionals believe they are.  Dr [E], the paediatrician, has been reviewing both [R] and [M].  It was his view that while the wife though (sic) [M] was making good progress, he did not believe that he was seeing many gains when [M] was reviewed by him.  The husband and wife have not been able to agree on the treatment [M] should receive.  As a result of that, the funding for [M]’s treatment has been put in jeopardy.  The wife is keen to continue [M]’s treatment with ISSAD.  The husband has reservations about this.  I form no concluded view as to which type of medical treatment is most appropriate for [M], but I am sure she is being prejudiced by the fact that her parents cannot agree on what it should be.  Certainly, nobody has indicated that the ISSAD programme would be inappropriate for [M]. 

1. Importantly for present purposes, her Honour discussed concerns which she had regarding the wife’s capacity to drive the children in a motor vehicle and her accommodation arrangements:

   25.     The husband has alleged that the children are not safe when driving with the wife.  He points to her poor traffic record, the evidence of a private detective who followed the wife on one occasion, and the fact that she was involved in a motor vehicle accident when her vehicle hit a post and she left the scene of the accident after.  As a result of the husband’s allegations the wife was restrained by injunction, as was her daughter [J], from driving with the children as passengers.  This injunction was put in place earlier this year.  In my view, it would be very difficult for the wife to be the primary care-giver for these children if she was not able to drive a motor vehicle in which they were passengers.

26.     The wife, through her counsel, has admitted that she has a poor traffic record.  The wife states that she is prepared to give undertakings to seek an extraordinary driver’s licence, and to undergo an advanced driver training course.  The wife accepts that she was involved in a traffic accident and left the scene immediately after without reporting the accident to the police.  The wife’s daughter, [J], has also had a traffic conviction for speeding.  I injuncted the wife from driving the children after an incident where the children were in a car and not wearing seat belts.  The wife had a number of convictions for speeding well over the speed limit and was seen speeding with the children in the car.  She had not seemed to change her manner of driving despite the convictions.  The fact that she had an accident and wrote off the [motor vehicle] further confirmed my opinion that the wife was a very poor driver.  If the wife was serious about acknowledging her poor driving record and wanted to improve her driving skills, she could have completed the advanced driving training course by now, but has chosen not to do so.

27.     The wife blamed the fact that she had difficulty getting the children to stay in their seat belts on their disabilities.  The husband says that he has no such difficulty with the children, and that they are regularly belted in his car.  I still have some very real concerns about the wife’s ability to drive in a safe manner, and to be able to control the children while they are in the car.  This being the case, I do not believe the injunction should be lifted.  If the children are primarily cared for by the wife and she is unable to drive, the children may well be prejudiced in the activities which they can take part in.  I am particularly mindful of this fact given that the Christmas school holidays will be commencing within six weeks. 

28.     The wife accepts that she has resided at her mother’s home, at a house at [Suburb F] and now at other rental accommodation, all within a period of twelve months.  The wife said she left the rental accommodation at [Suburb F] because there was a lake nearby which was a danger to [M], and [M] was able to get out of the gate.  The wife has not said why she was unable to go into alternate rental accommodation after [Suburb F], but instead chose to live with her mother for some months.  During that time she advised the Court of a number of suburbs in which she would be residing before finally taking up residence in [Suburb G].  I have no doubt that these changes of residence by the wife have not been in the best interests of the children who, because of their disabilities, particularly need a stable environment.  The husband has continued to reside in the former matrimonial home and the children have continued to reside with him in that home week about for 17 months.  The husband is still able to provide that same stable environment for the children.

1. We need not elaborate on her Honour’s consideration of the remaining s.68F(2) matters as her Honour either found those matters to have no relevance to this case, or made observations which have no particular significance for this appeal.

1. Her Honour’s overall conclusion in relation to the s.68F(2) matters and in relation to the competing applications before her for interim residence orders was as follows:

   34.     I still have reservations about each of the parties’ ability to care for the children.  I do, however, intend to make an order which I think will be in the children’s best interests and will provide them with the most stable environment.  In that regard the husband remains living in the former matrimonial home, which has been the children’s home since birth.  I am satisfied that he has the ability to look after the children and provide for their physical and emotional needs.  I have concerns about the husband’s ability to recognise the disabilities from which these children suffer.  If the husband and wife are unable to agree as to the treatment [M] and [R] should receive in the interim, then an order can be made by me to set in place a treatment regime until trial.

35.     I am not satisfied that the wife is able to provide a stable situation for the children, nor am I satisfied that she is able to provide a safe environment for the children were she to be able to drive them herself.  The wife appears to me to be concerned as to the legal proceedings and their outcome.  This appears less of an issue for the husband, and I believe he will be able to provide the children with their daily needs during the week.  I believe the children should see the wife on the weekend.  I am not convinced the injunction previously made by me in relation to the driving of the children by the wife or [J] should be lifted at this stage.  Should the wife complete a safe driving course, I may be convinced it is appropriate at that time to lift the injunction.

1. It will thus be seen that her Honour, when confronted with a situation in which both parties then sought that the shared week-about arrangement no longer continue, determined that the children should live principally with the husband, notwithstanding the concerns which she had about his ability to recognise the children’s disabilities.  This was because she was satisfied that the husband could provide for the needs of the children in the former matrimonial home, and because she was not satisfied that the wife could provide a stable situation for them, nor a safe driving environment.

The principles relevant to the admission of further evidence on appeal

1. Before detailing the further evidence which the wife sought to adduce before us, we will make some preliminary reference to the principles governing the admission of further evidence in an appeal such as the present.

1. By virtue of s.93A(2) of the Act, the Full Court, in hearing an appeal from a single judge of the Family Court, may receive further evidence. In the High Court decision in CDJ v VAJ (1999) 197 CLR 172; (1998) FLC 92-828, McHugh, Gummow and Callinan JJ explained in (paragraph 109) that the “principal purpose” of s.93A(2) “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”, and that the “power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures”.

1. It was clear from the written submissions on behalf of the wife (paragraph 8), that relying on the High Court decision in CDJ v VAJ, she sought to adduce the further evidence “in order to demonstrate that beyond the grounds of appeal set out in the Notice of Appeal, the order of 8 November 2001 granting interim residence to the husband is erroneous”.

1. We mention at this point that it was the contention of Counsel for the husband, both in his written and oral submissions, that none of the evidence which the wife sought to adduce would demonstrate that the order was erroneous.

1. There were further important observations made by the High Court in CDJ v VAJ concerning the exercise by this Court of the discretion to admit further evidence beyond what was said in the short passage to which we have referred above in paragraph 28.  However it will be more convenient to consider those observations after referring to the actual evidence which the wife sought to adduce.

The further evidence sought to be adduced by the wife

1. The further evidence which the wife sought to adduce in order to establish that the order granting the husband sole residence of the children is erroneous, is contained in the following affidavits:

   (a)the affidavit of Mr H filed 6 November 2001;

   (b)the affidavit of Ms K filed on 6 November 2001;

   (c)the affidavit of Ms K filed on 14 November 2001;

   (d)the affidavit of Ms K filed on 23 November 2001;

   (e)the affidavit of Mr R filed on 30 November 2001;

   (f)the affidavit of Ms N sworn 22 April 2002;

   (g)the affidavit of Ms R sworn 19 April 2002;

   (h)the affidavit of Ms O sworn 1 November 2001;

   (i)the affidavit of Ms P sworn 5 November 2001;

   (j)the affidavit of Ms K sworn 23 April 2002;

   (k)the affidavit of Nan Jenour  sworn 24 April 2002;

   (l)the affidavit of Ms S sworn 26 April 2002.

1. The affidavit of Mr H, a clinical psychologist, who was engaged by the husband to conduct an assessment of the two children for purposes of the trial, had annexed to it reports by Mr H (dated 24 September 2001) on each child.

1. Mr H’s reports concluded that the child, R, has “a severe language disability in the language area of development”, and that the child M, has “significant and severe language problems”.  Mr H also concluded in relation to the child, M, that if the ISADD (Intervention Services for Autism and Developmental Delay) program was able to provide enough experienced staff and appropriate time, it “would be the best option at this time”. 

1. These conclusions by Mr H both in relation to the severity of the children’s disabilities and the appropriateness of the ISADD program are important because of the concerns which her Honour expressed in paragraphs 24 and 34 of her judgment regarding the husband’s acceptance of, or recognition of, the children’s disabilities, and also because of her Honour’s finding in paragraph 24 of her judgment that the husband had reservations about the continued treatment of M by ISADD.

1. Also relevant to the issue of the involvement of ISADD with the child, M, are the four affidavits of Ms K, who is a director of, and the program manager for, ISADD.  While Ms K’s affidavits must, in the absence of cross-examination, be treated with some caution because of the conflict that apparently exists between her and the husband (see in this regard the affidavit of the husband filed 30 November 2001, which is also the subject of the wife’s further evidence application), they nevertheless give an indication of the level of the wife’s commitment to the ISADD program and raise serious questions as to how that commitment could be availed of for the benefit of the child, if the child was only with the wife at weekends (as she would be under her Honour’s order).

1. Ms N, who is the daughter of the husband, states in her affidavit that she has not seen the children since September 2001 and that she has not assisted her father in caring for the children since 2001.  This evidence is significant because there was no dispute before us that Ms N was the husband’s daughter who collected the children (from the wife) when they were moving to the husband’s home under the week-about arrangement, and to whom her Honour was referring when in paragraph 16 of her judgment she said:

   While there have been some difficulties at handover, those matters have now been largely resolved with the husband’s daughter collecting the children when they reside with the husband, and the husband returning them.

1. It must, of course, be recognised that in a case such as this (where neither parent is suggesting that there be no contact), it will always be necessary for there to be in place some arrangement for transferring the children from one parent to the other parent.  Nevertheless, it is a matter of some concern that a person whose involvement was described in her Honour’s judgment as “largely” resolving difficulties at “hand-over”, is no longer involved in this way with the children. 

1. Moreover, we are prepared to infer that Ms N would have been one of the members of the husband’s extended family to whom her Honour was referring when she said in paragraph 14 of her judgment “the children have a very good relationship…with the husband’s extended family members”.  It seems clear that the children no longer have a relationship with this particular member of the husband’s family.

1. In her affidavit Ms S (whose children attend the same school as the child, M,) gives evidence of occasions during 2001 when she observed the child, M, standing unrestrained in the husband’s car, and also of her observation of the child, M, being distressed on occasions in 2002 when the husband has collected her from school.  It will be recalled that in paragraph 27 of her judgment, her Honour recorded evidence of the husband to the effect that the children are regularly restrained by seatbelts in his car.  The evidence of distress on the part of M when she is collected by the husband must cast doubt on her Honour’s conclusion in paragraph 15 of her judgment that the children would experience little difficulty with a change to residing with the husband each week.

1. The wife in her affidavit provides what might be called updating evidence regarding a range of matters including her housing arrangements and the children’s schooling and treatment.  Particularly important for present purposes is the wife’s evidence that on 26 February 2002, orders were made which, by consent, discharged the injunction restraining the wife from driving a motor vehicle while the children are passengers in that vehicle.  In this regard it will be recalled that in paragraph 25 of her judgment, her Honour observed:

   In my view, it would be very difficult for the wife to be the primary care-giver for these children if she was not able to drive a motor vehicle in which they were passengers.

1. We need say little about the affidavits of Ms O and Ms P (both of whom are relatives of the wife), other than that their relevance for present purposes is that they provide further evidence of the stress which the children exhibit when they are “handed-over” to the husband.  This evidence, if accepted, would, particularly when considered with the evidence of Ms S, throw considerable doubt on the correctness of an order which placed the children in the primary care of the husband and limited their time with the wife to two nights and two days each weekend.

1. The affidavit of Nan Jenour need not be discussed.  She is the wife’s solicitor and her affidavit does little more than explain the other affidavit evidence which the wife wished to adduce by way of further evidence.

Conclusion

1. While it is true, as was submitted by Counsel for the husband in opposition to the wife’s application to adduce the further evidence, that no one part of that evidence which we have just summarised, would on its own demonstrate that her Honour’s order placing the children primarily in the care of the husband (on an interim basis) was erroneous, we were nevertheless satisfied that when considered as a whole the evidence did demonstrate that that order must now be regarded as erroneous and could not be permitted to stand.

1. It must be remembered that it is the usual practice of this Court to determine applications for interim residence on the basis of affidavit evidence only, and that cross-examination is not usually permitted except in special circumstances.  Accordingly, this Court was itself in a position to accept and make its own determination on the basis of the further evidence without the need for a new trial.

1. We make that last observation against the background of the following cautionary comments which McHugh, Gummow and Callinan JJ made in their joint judgment in CDJ v VAJ in relation to the exercise of the discretion to admit further evidence:

   111. … Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.

   …

   114. No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. In the case of undisputed evidence which the Full Court can evaluate as part of the evidence in the appeal, the discretion to admit the evidence may even be properly exercised without the Full Court considering what effect it would have had on the trial judge's decision. In that context, the likely effect of the further evidence on the Full Court's view of the evidence before the trial judge is the important consideration. …

1. Given that, as was also pointed out by McHugh, Gummow and Callinan JJ in CDJ v VAJ (at paragraph 111), this Full Court must decide an appeal on the facts (and law) as they exist at the time of the hearing of the appeal, an important consideration for us in reaching our decision in this case was the fact that through a combination of circumstances, the two children in question have for the last two years (that is, since May 2000) been living week-about with each parent. 

1. That situation, combined with the further evidence regarding (a) the severity of the children’s disabilities, (b) the appropriateness of the ISADD program for the child, M and the wife’s commitment to that program, (c) the  wife’s ability now to drive the children, (d) the cessation of the involvement of the husband’s daughter, Ms N, in the children’s lives, and (e) the distress that the children exhibit when they have to leave the wife, satisfied us that the order requiring the children to live primarily with the husband was now erroneous, and that the children’s interests would be best served by making orders, the effect of which, would be to maintain the week-about arrangement.

1. Accordingly, we granted the wife’s application to adduce further evidence, allowed the appeal against the order granting sole residence to the husband, and discharged that order.  As we explained at the commencement of these reasons, the effect of discharging that order was to revive the order made on 25 May 2000 which provided for the week-about shared residence arrangement.

1. As to the orders which we made with respect to the costs of the appeal and of the application to adjourn the hearing of the appeal, we need only say that we were satisfied that the circumstances warranted the making of those orders.

I certify that the preceding 50 paragraphs
are a true copy of the reasons for judgment
of this Honourable Full Court.

Associate