Murphy and Curtis - [2012] FamCAFC 146

FAMILY COURT OF AUSTRALIA

MURPHY & CURTIS

[2012] FamCAFC 146

FAMILY LAW ─ APPEAL ─ CHILDREN ─ Parenting arrangements ─ Challenge to orders regarding changeover ─ Whether the learned Federal Magistrate failed to provide adequate or any reasons for declining to make an order, which the appellant father sought, with respect to changeover ─ Where as a matter of record, what was before the Federal Magistrate should have been transparent in the sense that there should be no doubt about what was or was not actually sought in final submissions ─ Where the absence of the minutes of order as sought by the appellant father, which were submitted to have been handed up to the learned Federal Magistrate at trial as the final orders the appellant father would seek, and which were received as an aide memoire, vitiates the exercise of his Honour’s discretion, and enlivens appellate intervention ─ Where in the absence of knowing exactly what the minutes propounded on behalf of the appellant father recorded, the Court is limited in knowing exactly what his Honour regarded as being the controversial issue or issues revealed by the competing proposals ─ Where on balance, the Court was not persuaded that his Honour adequately revealed the process of reasoning which led him to conclude as he did ─ Appeal allowed ─ Proceedings remitted.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appellant father sought an order in relation to transcript costs ─ Where the Court was not of the opinion that either party should pay the other’s costs of the appeal, due to the totality of the transcript being necessary to effectively agitate the primary challenge of the appeal ─ Where the appellant father demonstrated an error of law which enlivened the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) ─ Each party granted a costs certificate with respect to the appeal and the re-hearing of the issues.

Family Law Act 1975 (Cth); Part VII
Federal Proceedings (Costs) Act 1981 (Cth)

Allesch v Maunz (2000) 203 CLR 172
Bennett and Bennett (1991) FLC 92-191
MRR v GR (2010) 240 CLR 461
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Sun Alliance Insurance Ltd v Massoud (1989) VR 8

APPELLANT:

Mr Murphy

RESPONDENT:

Ms Curtis

FILE NUMBER:

MLC

2093

2009

APPEAL NUMBER:

2012

DATE DELIVERED:

28 August 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Coleman J

HEARING DATE:

28 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

28 March 2012

LOWER COURT MNC:

FMCAfam 278

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Vohra

SOLICITOR FOR THE APPELLANT:

Howard Bear Legal Consulting Services

SOLICITOR FOR THE RESPONDENT:

Ms Curtis appeared in Person

Orders

That the appeal be allowed.
That order 3(b)(ii) insofar as it relates to Thursday evenings, and order 3(g) insofar as it relates to Christmas and school holiday periods of the orders of the Federal Magistrates Court of 3 February 2012 (as remade on 28 March 2012) be set aside.
That the proceedings be remitted to the Federal Magistrates Court for             re-hearing by a Federal Magistrate other than Federal Magistrate McGuire in relation to:
(a)    The obligations of the father to transport the child of the parties pursuant to the orders of the Federal Magistrates Court of 3 February 2012 (as remade on 28 March 2012); and
(b)    The application of the father for an order that “the father, or an adult nominated by the father and who is known to [N], shall collect [N] from the mother’s residence at the commencement of a period [N] spends with the father”.
That order 3(b)(ii) and 3(g) of the orders of the Federal Magistrates Court of 3 February 2012 (as remade on 28 March 2012) be made by way of interim order until the redetermination of the proceedings pursuant to these orders.
That the Court grants to the Appellant Father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Father in respect of the costs incurred by the Appellant Father in relation to the appeal.
That the Court grants to the Respondent Mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Mother in respect of the costs incurred by the Respondent Mother in relation to the appeal.
That the Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Murphy & Curtis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 28 of 2012

File Number: MLC 2093 of 2009

Mr Murphy

Appellant

And

Ms Curtis

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

introduction

By Amended Notice of Appeal filed on 27 July 2012 Mr Murphy (“the father”), appealed against orders made by McGuire FM on 3 February 2012, and made again in essentially the same terms on 28 March 2012 in parenting proceedings pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”) between the father, and Ms Curtis (“the mother”). In the interests of clarity these reasons will refer to the orders of 28 March 2012.
The Amended Notice of Appeal of the father challenged the making of order 3(b)(ii) of the orders of the learned Federal Magistrate insofar as that order provided that on Thursdays the father be responsible for returning the child of the parties, N born in 2008, to the mother’s residence, the father having sought at trial and continuing to seek that the onus in that regard be upon the mother. The father also challenged the obligation imposed upon him by order 3(h) made by the learned Federal Magistrate in relation to Christmas day and school holiday periods.
The second aspect of the Amended Notice of appeal related not to an order actually made by the learned Federal Magistrate, but to an order which can, for present purposes, be referred to as a “nominee order”, which was not made by his Honour. The order actually sought by the father provided:
9.That unless the Father and Mother otherwise agree:
a)The Father, or an adult nominated by the Father and who is known to [N], shall collect [N] from the Mother’s residence at the commencement of a period [N] spends with the Father.
b)The Mother, or an adult nominated by the Mother, and who is known to [N], shall collect [N] from the Father’s residence at the end of a period [N] spends with the Father.
The mother resisted the father’s appeal, and sought to maintain the orders of the learned Federal Magistrate.

background

The background to the appeal can be very briefly and uncontroversially recorded. That background is derived from the reasons for judgment of the learned Federal Magistrate.
The parenting proceedings between the parties occupied a significant number of hearing days in the Federal Magistrates Court after which, and whilst judgment was reserved, the matter was re-listed. As his Honour recorded in his reasons for judgment, the proceedings related to the one child of the parties to whom reference has been made.
During the course of the proceedings, as his Honour also identified in his reasons for judgment, a number of matters were resolved, whilst a number of matters remained keenly contested. Under the heading “The issues” the learned Federal Magistrate recorded in a series of paragraphs the matters which required adjudication. They included the question of the time which the child would spend with each of the parties, and issues of the transport which would facilitate the time which should be spent occurring. Other issues included Christmas and holiday time, and some other matters of less significance.
The issues which give rise to this appeal have been identified, and that identification renders any further background or recounting of material facts unnecessary and unhelpful. It is thus appropriate to proceed to consider the challenges to the orders which have been identified.

The challenge to the “nominee order”

For convenience the Court will first consider the challenge to the order which the learned Federal Magistrate undoubtedly did not make, which has been referred to earlier as the “nominee order”.
By his case outline document in the proceedings before the learned Federal Magistrate, the father sought an order:
16.That unless the Father and Mother otherwise agree:
The Father, or an adult nominated by the Father and who is known to [N], shall collect [N] from the Mother’s residence at the commencement of a period [N] spends with the Father.
The order sought a reciprocal provision in favour of the mother. That provision assumes no significance for present purposes.
In essence the contention of Counsel for the father is that the learned Federal Magistrate failed to provide adequate or any reasons for declining to make the order which the father sought, and, it was submitted, continued to seek to the conclusion of the trial of the proceedings. Counsel for the father referred the Court to a document, which appears at page 111 of appeal book volume 1 and following, which is headed “Minutes of Proposed Consent Orders – Fathers”.
By reference to the submissions of Counsel then representing the father to the learned Federal Magistrate at the conclusion of the trial, it was submitted that minutes of order in the terms of the document, appearing at page 111 of appeal book volume 1, were handed up to the learned Federal Magistrate by Counsel then representing the father as “the father’s final orders that he would seek”. The following exchange ensued between the learned Federal Magistrate and Counsel then representing the father as follows:
HIS HONOUR: Yes, Ms Brennan.
MS BRENNAN: Your Honour, perhaps if I can tender to you the father’s final orders that he would seek, because there’s some variance on those that he put - - -
HIS HONOUR: Well, I will take it as an aide-memoire; it’s not evidence.
MS BRENNAN: No. But just so that I - - -
HIS HONOUR: So, the order sought ─ that’s on an aide-memoire. Yes.
Counsel then representing the father offered to tender the document to the learned Federal Magistrate. His Honour preferred to receive the document as an aide memoire, as was open to him. With hindsight, and without in any way criticising the learned Federal Magistrate, it would have been preferable, as events have transpired, had the document been received into evidence as an exhibit, albeit, as his Honour correctly observed, it was not evidence of any fact in issue in the proceedings. Counsel for the father submitted that the document appearing at page 111 of the appeal book volume 1, accurately reflected the document which the father’s then Counsel had provided to the learned Federal Magistrate.
The father had, it was submitted, sought at the commencement, throughout the trial, and in concluding submissions, a nominee order in the terms which the Court has indicated. It was thus submitted that the learned Federal Magistrate had failed to provide any or adequate reasons for not making the order which the father had sought. Implicit in that submission was that the evidence did not render demonstrably inappropriate an order of that kind, and at least inferentially that there was some evidentiary foundation for such an order.
It was further submitted, albeit the Court considers by way of ancillary submission, that the learned Federal Magistrate having not, at least in final submissions, raised the prospect that he would not or was unlikely to make that order with Counsel then representing the father, thereby affording Counsel the opportunity to be heard in support of the application, had denied the father natural justice.
In her cogently reasoned submissions, the mother, who is a lawyer, made a series of submissions, most directly relevant being those commencing at paragraph 22. In paragraph 22(f) of her submissions the mother identified a preliminary issue, as it were, in relation to the challenge to the absence of a nominee order or any reasons for not making such order and submitted:
22.The father seeks to rely on his Aide-Memoir handed up during his Counsel’s closing submissions as evidence that he did not concede he would attend changeovers in person and both collect and return [N]. There are a number of difficulties with this:
...
f.My Counsel says the documents described as “Mother’s Minutes of Proposed Orders relied upon during trial” and “Father’s Minutes of Prosed Orders relied upon during trial” both contained in the father’s Appeal Book are not identical to the forms of orders handed up by Counsel for the mother and father respectively. I do not have a copies of either original document provided to His Honour, which I assume would be contained on the Court file if they formed part of the case. (Errors as in original)
The mother submitted, and the Court accepts, that she did so in good faith and with an objective basis, that the document, appearing at page 111 of the appeal book volume 1, was not identical to the document handed up by Counsel for the mother and father respectively. The mother submitted, and in view of what has transpired the Court accepts accurately, that she did not have a copy of the document which was provided to his Honour.
It is apparent in the circumstances that the starting point for a consideration of the various challenges to the learned Federal Magistrate’s decision with respect to the father’s application for a nominee order is potentially flawed by the parties not agreeing that the document, appearing at page 111 of the appeal book volume 1 and following, was in fact a copy of the document which was handed to the learned Federal Magistrate, and became his Honour’s aide memoire.
It ought not be thought that Counsel for the father had in any way inadvertently or otherwise misled the Court about the document, readily conceding as did the mother, that a search of the file of the Federal Magistrate’s Court had failed to reveal the original aide memoire. The Court accepts that the document at page 111 of the appeal book volume 1 and following was genuinely believed to be identical to the document which his Honour was given.
The Court has, through the Court Officer, conducted a thorough search of the file of the Federal Magistrates Court which, as is usual in appeals of this kind, is physically present in this courtroom. Not surprisingly, given that neither of the parties was able to find a copy of the aide memoire, nor could the Court officer. The position is, thus, that the document which, if not pivotal to these challenges, is certainly central to them, is not available, and the parties do not agree as to the contents in relation to this topic of the document which the learned Federal Magistrate had before him. In those circumstances, other than assuming, which the Court cannot, and will not, that the document did not reiterate the father’s request for a nominee order, the Court is not really able, in a way that would withstand scrutiny, to engage with any intellectual rigor with these challenges.
The Court accepts that this must have been an extremely difficult case, given its duration, the issues which were raised, the earnestness with which they were pursued, the fact that some issues appear to have dissolved as time progressed, others changed, however, if the aide memoire did reiterate the request of the father for a nominee order in the terms previously indicated, then, with respect, his Honour’s reasons for judgment, which are silent on this topic, would, by the application of accepted principles governing challenges to the adequacy of judicial reasons, be found wanting.
Conversely, if, as the mother asserts, the issue was not pursued in final submissions, having either been abandoned or “falling by the wayside”, as it were, during the course of the trial, then the authorities would also leave little scope for uncertainty as to the fate of these challenges. These challenges would fail, the law being clear that, whilst a judicial officer must expose the reasoning process that led him or her to decide an issue in the way in which it was decided, there is no obligation, and it would be extraordinary if it were otherwise, to provide any reasons in relation to matters which had, by the conclusion of the trial, ceased to be controversial.
The interests of justice are paramount in appeals to this Court, and the absence of the aide memoire does, in this Court’s view, provide a sufficient and compelling basis for appellate intervention. It is fundamental to our system of justice that the decisions of subordinate courts are able to be reviewed by intermediate Appeal Courts such as this Full Court.
What was before the learned Federal Magistrate is a matter of record, and should have been transparent in the sense that there be no doubt about what was or was not actually sought in final submissions. The absence of the document is not a mere inconvenience. It goes to the heart of the integrity of the trial process.
The proceedings, albeit under the umbrella of the best interests of the welfare of the child, were proceedings which fell to be determined judicially. Reasons for decisions were required. The process by which the decision was reached was required to be transparent.
Again, stressing that so doing does not imply criticism of the learned Federal Magistrate, who could not possibly be expected to secure the safe custody of all documents which came before him, the absence of the minutes of order which were ultimately sought by the father does, in this Court’s view, vitiate the exercise of his discretion, and enliven appellate intervention.
As noted earlier, the father’s outline of case document clearly identified, as an order being sought by him, the nominee order there articulated. The Court has not been referred to anything in the transcript of the trial which suggests that the father, at any stage, formally or informally abandoned his application for that relief, nor has the Court been referred to anything in his Honour’s judgment which suggests that his Honour understood or misunderstood that the issue had been resolved, or otherwise “gone away”. With respect to his Honour, we are simply unable to know whether he considered the issue, and if he did, what his Honour concluded about it. Regrettably in the circumstances, appellate intervention is enlivened.
Whilst it is not a reason for appellate intervention being enlivened, the reality is, in all probability, that, given the uncertainty as to whether this issue was ever considered, and the reality that, if it was, no orders were made with respect to it, no reasons for judgment were given in relation to it, and no findings of fact were made in the course the learned Federal Magistrate’s reasons for judgment with respect to it, it is probable that the mother would struggle to successfully agitate a defence based upon res judicata issue estoppel, were the father to bring a fresh application seeking orders in the terms he previously sought with respect to nominees, if the appeal were dismissed. That does not provide a foundation for appellate intervention, but it does, in a practical sense, at least to some extent ameliorate what might be thought to be a very unsatisfactory basis for appellate intervention. It is common ground, and sensibly so, that, appellate intervention having been enlivened, the issue of the nominee provision in the parenting orders would require a re-hearing, if in fact it was actually previously heard.

Both parties will have the opportunity to adduce such further or additional evidence as each seeks, consistent with the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172.

The challenge to order 3(b)(ii) and 3(h)

The second challenge falls within a narrower, but nevertheless quite intense, compass, and that relates to parts of the terms of order 3(b)(ii) and 3(h) (which was order 3(g) of the orders of 3 February 2012, which was the order referred to in submissions in this appeal) of the orders made by the learned Federal Magistrate. As recorded earlier, the relevant provision of order 3(b)(ii) was that part which provided that the father return N to the mother’s home at 7 pm on the Thursdays referred to in the order, and transport the child on Christmas day and school holiday periods.
At least initially at trial, the mother’s position was that the period should end at 6 pm and that she would do the travel at that time. That emerges from the opening statement of Counsel then representing the mother, which recorded:
MS STOIKOVSKA: My client’s proposal is that she will collect [N] from the father’s residence every Thursday or Sunday for changeover, and the father should collect [N] from my client’s residence – wherever it is on the stairs – he should collect [N] from mother’s residence, or school, as the case may be, for every other changeover, save that she says that father should drive up the driveway – because there’s an issue about that – as to whether the father drives up the driveway and he and the child walk along the driveway or not. She would say that he is really to come into the driveway so [N] is protected from the weather, if and when the weather is an issue, and effectively, collect [N] from her at her front door, which happens to be up some stairs. (Errors as in original)
As is not in doubt, the learned Federal Magistrate’s order provided differently both as to the concluding time, 7 pm instead of 6 pm, and the obligation for travel. The Court accepts, as the mother has suggested in her outline of argument, that during the course of the trial her position changed. The mother has not sought to cross-appeal order 3(b)(ii), nor, having regard to the submissions made by her at paragraph 28 and following of her outline of argument, was she likely to do so.
The submission of Counsel for the father was that at no place in his reasons for judgment did the learned Federal Magistrate reveal, adequately or at all, why he concluded as he did with respect to, not so much the 7 pm completion time, which the father does not complain about, but the obligation that he undertake the travel. It is not in doubt that his Honour did not in his reasons for judgment expressly reveal the process of reasoning which led him to conclude as he did in order 3(b)(ii) with respect to Thursday evenings. Similar submissions were made in relation to order 3(h).
The submission of the mother is that, whilst there was not an express revelation of his Honour’s reasoning process, the process was sufficiently discernible from what his Honour said in certain parts of his judgment, and by reference to his Honour’s orders.
The starting point, as the mother suggested, is perhaps the terms of his Honour’s orders. From those orders, it is clear that, save with respect to N’s birthday (order 3(g) of orders made 28 March 2012, and order 3(f) of orders made on 3 February 2012), other than when changeovers were to commence at school, from the time the child commenced to attend school, his Honour’s orders imposed the obligation of transport to the mother’s home on the father.
The mother then referred to paragraph 42 of the learned Federal Magistrate’s reasons for judgment, particularly to the part of that passage of his Honour’s reasons which records:
... Changeovers, despite my optimism have historically proved difficult and potentially traumatic for [N]. Consequently I propose to make orders which address [N] settling into each household but propose a move forward on a quicker regime than that suggested by the mother. Whilst I am optimistic as to the progress and future of the parents being able to cooperate, I must remain mindful of their past difficulties and limit the opportunity for further dispute. ...
Counsel for the father disputed that either in paragraph 42 or any subsequent paragraph of his Honour’s reasons did his Honour reveal, inferentially, what led him to conclude what he did with respect to this topic. Unlike the first issue which the Court has determined, this issue is less clear.
The paragraph, (paragraph 42), in which the passages not surprisingly relied upon by the mother are contained is a paragraph which, with respect to his Honour, to use the colloquial, “rolls up a number of issues”. Without criticising his Honour for having failed to do so, there being no ground of appeal which raises the issue or in any way is dependent upon the issue inferentially being raised, it may have been preferable to have more closely followed the legislative pathway, as it is generally described, which the High Court considered in its decision in the case of MRR v GR (2010) 240 CLR 461.
Be that as it may, as the Court suggested to the mother during the course of her submissions, it is necessary to read those passages in the context of the totality of the paragraph. Having recorded that best interests was the overarching requirement, the learned Federal Magistrate referred to the proposals of the parties. Regrettably, in the absence of knowing exactly what the minutes propounded on behalf of the father recorded, the Court is limited in knowing exactly what his Honour regarded as being the controversial issue or issues revealed by the competing proposals. His Honour discussed that the father had no longer pursued an application for equal time. With respect to his Honour and without wishing to be, or appear to be, pernickety, so doing occurred prior to his Honour concluding, as he did later in that same paragraph, that the presumption of equal shared parental responsibility was not rebutted.
Having recorded that the father did not pursue his application for equal time, his Honour recorded, uncontroversially one would think, at paragraph 42, that “the orders must also allow for the fact that [N] is still very young and needs routine and certainty within her living arrangements” before proceeding to record the words which the Court previously read from paragraph 42.
The Court understands the argument which the mother has articulated, and is not able to reject that argument as possibly being what his Honour was alluding to. The Court also accepts that the line between adequate and inadequate reasons for judgment is not always readily drawn, and accepts that, as the authorities establish, reasons for judgment can be adequate, albeit implied to a significant degree. However, the Court is, on balance, not persuaded that his Honour there adequately revealed the process of reasoning which led him to conclude as he did (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, Sun Alliance Insurance Ltd v Massoud (1989) VR 8, and Bennett and Bennett (1991) FLC 92-191).
Inferentially, it might be thought that his Honour preferred the approach which the mother appears to have fairly conceded during the course of the trial, that is, that the father could have an extra hour, for reasons which the mother suggested in her evidence, provided that he undertook the travel associated with returning the child having had the extra hour, and that the father undertaking the transport of the child was likely to be less problematic. The distance between where the parties live would not appear to have rendered such a decision unreasonable. Indeed, nothing to which this Court has been referred establishes that his Honour’s discretion would have miscarried had he adequately explained why he so exercised it in making the order he did.
As suggested to the mother during the course of her submissions, with great respect to the learned Federal Magistrate, and again being mindful of the difficult proceedings which he was obliged to hear and determine, probably one sentence in his Honour’s reasons would have been sufficient to deny this challenge any entitlement to success. With respect to his Honour and the submissions of the mother and without, the Court believes, being pernickety or erroneously applying a requirement of perfection which is unreasonable, in the absence of anything which was clearly referable to this topic, and an indication of why his Honour concluded as he did, this challenge too is entitled to succeed. It too will be remitted for re-hearing.
As a result of the appeal succeeding, order 3(b)(ii) in relation to Thursday evenings, and order 3(h) in relation to Christmas day and school holidays, will be set aside. Given that this Court is in no position to re-exercise the discretion of the learned Federal Magistrate, and that it is undesirable that there be a vacuum in the orders consistent with the approach the Court generally takes, the preferable course is that, having been set aside as a final order, the Thursday provision of order 3(b)(ii) will be made as an interim order, that is, until the matter is re-determined in the Federal Magistrates Court.
Given that the nominee order was not made, allowing the appeal can result in no more than the issue, to the extent that it was dismissed, being remitted for re-hearing. His Honour, by his orders, may not in fact have dismissed the application insofar as the Court does not perceive that his Honour made an order, as the final order, dismissing all other outstanding applications and cross-applications. Nothing turns on it for practical purposes.

costs

Counsel for the father has sought an order in relation to transcript costs which were submitted to have been incurred by the father in the sum of $4000 as a consequence of the mother, until late in the piece, declining to make a concession with respect to the second of the challenges which this Court has determined.
As Counsel for the father properly and fairly conceded, the primary challenge of the father would, if not necessitating the totality of the transcript, have been agitated at very considerable risk, in terms of success, in its absence. That is to say, in all probability the whole of the transcript would have been required, and continued to be required whether or not the mother made any concession with respect to the second challenge.
The second point is, as Counsel for the father again fairly conceded, that it was only on or about 27 July 2012 that the father filed his Amended Notice of Appeal. When one looks at the original Notice of Appeal, which was a draft notice of appeal when an application for leave to appeal was sought, what was advanced raised a compendium, for want of a better term to describe it, of complaints with respect to the order of the learned Federal Magistrate.
Unless and until the Notice of Appeal was amended, as it thankfully was in July 2012, it could not be successfully asserted that the totality of the transcript would not be, and have continued to be, required.
For those reasons and principally in relation to the necessity for the totality of the transcript to effectively agitate the primary challenge, the Court would not be of the opinion that either party should pay the other’s costs of the appeal.
The appeal succeeded on the basis that the appellant father through his Counsel demonstrated an error of law thus enlivening the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). Each party should receive a costs certificate with respect to the appeal and with respect to the re-hearing of the issues which will be remitted for re-hearing.

I certify that the preceding fifty one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 28 August 2012.

Associate:

Date: 06.09.2012