NORSIC & NORSIC
[2013] FamCA 98
•05 February 2013
FAMILY COURT OF AUSTRALIA
| NORSIC & NORSIC | [2013] FamCA 98 |
| FAMILY LAW - CHILDREN - Best interests |
| APPLICANT: | Ms Norsic |
| RESPONDENT: | Mr Norsic |
| FILE NUMBER: | TVC | 764 | of | 2010 |
| DATE DELIVERED: | 05 February 2013 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 29 January 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: |
| SOLICITOR FOR THE APPLICANT: | Self Represented |
| COUNSEL FOR THE RESPONDENT: | Mr Betts |
| SOLICITOR FOR THE RESPONDENT: | Kelly Legal |
Orders
That the Initiating Application filed 4 December 2012 be dismissed.
That there be no order as to costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Norsic & Norsic has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: TVC 764 of 2010
| Ms Norsic |
Applicant
And
| Mr Norsic |
Respondent
REASONS FOR JUDGMENT
On 19 March 2012 Murphy J, with the consent of the parties, made final parenting orders in relation to the parties’ children. They are R, born in December 2000, and N, born in February 2004, (herein after in these reasons referred as “the children.”) Those orders included orders 46 to 57 which related to overseas travel by the children. Relevant to the matter currently before me are orders 46 and 51 which provided as follows:
(46)that either party shall be permitted to take the children out of Australia for holidays and for other short period of time and, in relation to the parties taking the children out of Australia, the parties agree as follows:
a) the occasions on which either party takes the children out of Australia coincide with normal school holidays in the time specified on the orders above, unless agreed to in writing by both parties;
b) the travelling party will give the other party as much notification as possible of the travelling party’s intention to take the children out of Australia and, in any event, will not give less than three months written notice of such intention.
(51)The parties will not travel with the children to any country with the following warnings from Smartraveller:
a) High degree of caution
b) Reconsider your need to travel
c) Do not travel.
By initiating application, filed 4 December 2012, the mother sought final orders as follows:-
(1)Included in the Consent Order issued by Justice Murphy of this Honourable Court on the following clause: Clause 46(a) That the Respondent Father does not reasonable withhold consent for the children [R] born on … December 2000 and [N] born … 2004 to travel overseas.
(2)The respondent refuses to give consent for the release of the passports, I seek an order of this Honourable Court to release the passports for the purpose of travel outside of Australia for a period of 2 weeks from the 6th April 2013 to the 20th April 2013.
(3)Clause: 46(a) the occasions on which either party takes the children out of Australia are to coincide with normal school holidays, both parties are to give consent to allow travelling time either side of their allocated school holiday.
(4)Clause: 51 That the parties will not travel with the children to any country with the following warnings from Smart Traveller: (a) Reconsider your need to travel; (b) Do not travel.
She also sought interim orders as follows:
(1)The respondent refuses to give consent for the release of the passports, I seek an order of this Honourable Court to release the passports for the purpose of travel outside of Australia for a period of 2 weeks from the 6th April 2013 to 20 April 2013.
Although the wife only pursued or pressed interim orders when before me on 29 January 2013, Mr Betts, who appeared as counsel for the father, asked me to dismiss the mother’s application in its totality on the basis that it offended the so-called rule in Rice & Asplund.
The primary facts in this matter are not in dispute. The father hails from African Country B and the mother from African Country A. Both still have family living in those countries. The mother wishes to remarry and has planned to do so in April in African Country C. She proposes to depart Australia with the children on Saturday, 6 April 2013, and return on Saturday, 20 April – a time of 15 days.
The Queensland school holidays between first and second term commence on Friday, 29 March, and conclude on Sunday, 14 April. It follows that the mother’s proposed travel would see the children miss an entire week of school. The mother communicated her intentions by letter emailed to the father on 21 October 2012. Pursuant to the orders of Murphy J, the father was due to have the first half of the April school holidays with the children. In light of that, and his concerns about the children missing school, by his solicitor’s letter of 5 December, the father responded in part as follows.
Our Client’s Proposal For the [African Country C] Trip
In the end, our client is mindful that the travel is in relation to your upcoming wedding. He therefore puts the following proposal:
(a)He will return the children to you in the term 1 school holiday period on the evening of 4 April 2013 (three days early).
(b)This will enable you to fly overseas earlier than you had planned.
(c)On that basis you are to return the children to Australia in time so that they do not mean any school holidays (that is, they may only miss pupil-free days).
(d)He would also require that he be given makeup time in the September 2013 holidays so that he would have the children from 20 September to 2 October 2013.
The mother did not avail herself of this offer. Before me the mother contended that this was unsuitable as neither Saturday of the visit would be able to be used for her wedding since on each of those days she and the children would either be arriving or departing African Country C. Mediation between the parties occurred on 22 November 2012 however it was unsuccessful.
Travel to African Country B and African Country A were live matters in the parties’ cases leading up to the consent orders of Murphy J. The dangers of travel in African Country A were specifically raised in paragraphs 117 to 146 of the father’s affidavit, sworn 6 March 2012, and overseas travel, including to African Country A, dealt with in paragraph 64 to 72 of the mother’s affidavit sworn 10 February 2012.
Paragraph 70 to 72 of that latter affidavit provided as follows:
70With regard to condition 7 [condition 7 relates to correspondence appended to the affidavit] I agree that neither party shall travel with the children to any country with “do not travel” warnings from Smartraveller.
71I do not agree that the children should be permitted to travel to [African Country A]. The applicant’s family reside in [African Country B] and my family reside in [African Country A] which currently as a “reconsider your travel” warning. The children have visited their family throughout their lives in [African Country A] on a regular basis from as early as three months of age until April 2010 when the applicant decided that it was unsafe to travel. The children long to see their paternal and maternal extended families in [African Country B] and [African Country A].
72While I agree to condition 8 that the children should not travel overseas during school terms, I would like exceptions to be made for special occasions. In September 2011 I allowed the children to be taken out of school for a week to attend [the father’s] wedding and associated events. I believe this cooperation should be reciprocated in the future by both parties.
Whilst I have no evidence as to the course of the negotiation of the consent orders, it must be observed that, firstly, the desire of the mother to only restrict travel to countries with a “do not travel” warning from Smartraveller was not reflected in the March orders and, secondly, that the mother’s desire for exceptions on special occasions to the prohibition on the children travelling overseas during school holidays, was partly achieved in the orders by permitting such travel if “agreed to in writing by both parties.” However, there was no part of that exception which required such agreement not to be unreasonably withheld.
It has long been recognised that the public interest is best served by finality in litigation. That is particularly so in children’s matters in this court where re-litigation between parents has been identified as rarely of benefit to the children. This rule is commonly known as the rule in Rice & Asplund. In Marsden & Winch [2009] FamCAFC 152 the Full Court of this court discussed the modern articulation of the rule largely by reference, with approval, to the earlier decision of Warnick J in SPS & PLS (2008) FLC 93-363.
At paragraphs [41] to [50] the court said:-
41.Warnick J in SPS & PLS (2008) FLC 93-363 said at [1]:
The “rule” in In the Marriage of Rice and Asplund…that, where there has already been a final order in respect of parenting issues, before the court embarks on a rehearing of those issues, the applicant must establish a significant change of circumstance – is certainly useful, if not essential. But it is not the primary principle in applications for parenting orders. Nor is its utility or weight uniform across cases in which it might be applied. In particular, those attributes vary, according to whether the rule is applied at the outset of or at the end of a hearing.
42.The application of the rule was again described by Warnick J in [45] – [49] inclusive. Before turning to what Warnick J said of it, it is useful to recall that Rice & Asplund involved an appeal from custody orders which reversed an order made nine months beforehand. In her reasons for judgment (at 78,905), Evatt CJ said of the position of a court confronted with an application to change an earlier order that:
It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that, to quote Barber J., there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material
43.Evatt CJ went on to say that the threshold question was not necessarily one for preliminary determination.
44.As Warnick J discussed, the purpose of the “rule” is to discourage “endless litigation” In addition, as Nygh J said in McEnearney (1980) FLC 90-866 at 75,499:
…the principle that there be an end to litigation has equal force in custodial disputes and in some respects may have even greater force in custodial disputes. The last thing, of course, that this court would wish to see would be a perennial football match between parents who because the strict principles of res judicata are not applicable might seek to canvass again and again the question of custody of a child with the enormous psychological harm which they would be inflicting not only upon each other but especially upon the child.
45.Warnick J opined in SPS & PLS (supra) that:
58.Another end served by the rule is that it avoids one judge substituting his or her opinion of what is in the best interests of a child for that of another judge, though both opinions are based on the same or similar facts. This "evil" is avoided by a requirement that the previous order should not be altered unless there has been a change of circumstances sufficient to justify that result.
46.Warnick J had earlier said at [48]:
In my view, reflection on the rule shows that:
(i) What the application of the rule can achieve if dealt with as a preliminary matter is different from what it can achieve if dealt with at the end of a full hearing.
(ii) In its original formulation, the rule is directed to application as a preliminary matter. Yet, contemporaneously with that formulation the court in Rice and Asplund determined that the rule could equally be applied at the end of a full custody hearing. The consequences of that determination have received little attention.
(iii) At whatever stage of a hearing the rule is applied, its application should remain merely a manifestation of the "best interests principle".
(iv) Discussion in terms that the rule may be applied as a "preliminary matter" or the primary application be first heard "on the merits" may be unhelpful, particularly because of the implication that, if the rule is applied as a preliminary matter, the parenting application is not then dealt with "on the merits".
(v) The application of the rule is closely connected with the nature of, and degree of, change sought to the earlier order.
(vi) "Shorthand" statements of the rule may contribute to its misapplication.
(vii) Any application of the rule must now measure the evidence against the principles set out in Part VII of the Act, in particular the objects of the Part, the presumption of equal shared parental responsibility and the steps required by the Act consequent upon an order made or to be made in that regard.
47.We agree with those observations. Warnick J went on to consider each of these observations, recognising (at [74]) that once a court refrains from applying the rule as a preliminary matter and embarks upon a hearing the rule should not necessarily be cast aside although its force might be diminished. Importantly, Warnick J made the point that the implication should be avoided that if the rule is applied as a preliminary matter the parenting application is not dealt with on the merits. In particular, he noted that the “paramountcy principle” still applies to the decision to dismiss an application to vary (s 60CA of the Family Law Act 1975 (Cth); see also Newling & Mole (1987) FLC 91-856; F & N (1987) FLC 91-813; McEnearny (supra)). We agree with the conclusion reached by Warnick J (at [81]) that:
…when the threshold question described in Rice and Asplund is determined as a preliminary matter, it remains a determination “on the merits”. Where an application is dismissed at a preliminary stage, it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of compliance with form and procedure but rather because, assuming the evidence of the applicant is accepted, there is an insufficient change of circumstance shown to justify embarking on a hearing. Though sometimes unstated, the underlying conclusion will or ought be that the interests of the child in not being the subject of further litigation is more powerfully in the child’s welfare than to allow the application to continue.
48.In summary, the best interests issue arises because there are so many changes in the lives of families that the changed circumstances that will permissibly allow re-litigation of a decision must be circumscribed, otherwise there would exist in some cases the spectre of endless litigation finalising only when the child attains 18 years of age and the courts no longer have jurisdiction.
49.However, even that simple formulation must be subservient to the nature of the application itself. This is the genesis of the “rule” in Rice & Asplund and as Warnick J says it is founded on the notion that continuous litigation over the child or children is not generally in their interests. It is usually hoped that the determination of a controversy concerning children by a court will result in at least a reasonable period of stability of those arrangements and freedom from the stressful and conflictual effects of litigation on both parents and children. In addition, recent research demonstrates that conflict between parties is itself harmful to children.[1]
50.Nevertheless, there are significant changes that occur and which do require a court to reconsider decisions previously made. Whether in a particular case a court should be willing to embark upon another hearing concerning the child and parent, or whether to do so would itself be demonstrably contrary to the best interests of the child, is a decision to be made in each particular case. How is that decision to be made? The court must look at:
(1)The past circumstances, including the reasons for the decision and the evidence upon which it was based.
(2)Whether there is a likelihood of orders being varied in a significant way, as a result of a new hearing.
(3)If there is such a likelihood, the nature of the likely changes must be weighed against the potential detriment to the child or children caused by the litigation itself. Thus, for example, small changes may not have sufficient benefit to compensate for the disruption caused by significant re-litigation.
[1] See for example Jennifer McIntosh ‘Enduring conflict in parental separation: Pathways of impact on child development’ (2003) 9 Journal of Family Studies 63 and Jennifer McIntosh and Richard Chisholm ‘Cautionary notes on the shared care of children in conflicted parental separation’ (2008) 14 Journal of Family Studies 37.
Later at paragraphs [53] and [55] to [58], by reference to the earlier Full Court decision in Miller & Harrington (2008) (FLC 93-383) the Court continued:-
53.The Full Court then cited from the decision of Wilson FM in Cortes & Cabrera [2007] FMCAfam 293 at [19]:
…However, the court may consider that in light of the alleged changed circumstances, it was more appropriate to consider all the facts of the case before deciding whether the changes (sic) circumstances existed. An applicant’s material might disclose no change in circumstance such that the application can be summarily dismissed without a respondent being required to put on evidence. An applicant’s material might raise the suggestion that there is a changed circumstance which requires investigation but after reading the respondent’s material the court might be satisfied that there is nothing in the point raised. The court may, as a matter of discretion determine the threshold issue without testing the evidence. Alternatively there maybe contested issues of fact as to whether there are changed circumstances in which case a court may need to hear from witnesses and allow cross-examination.
55.Given that the application of the rule should always remain a manifestation of the best interests principle, we do not think that that principle can be given its full weight by restricting the application of the rule in Rice & Asplund to two choices, either application of the rule by taking the applicant’s case at its highest, or a full hearing.
56.In our view, depending upon the facts of each case, a broader range of processes should always be considered. This is because the decision is one which must be made in the best interests of the child but may also be because of the need to provide procedural fairness in the manner in which the court determines how the rule will be applied. As the Full Court in Gotch & Gotch [2009] FamCAFC 3 (Bryant CJ, Warnick & O’Ryan JJ) said at [13]:
In Miller & Harrington, the Full Court concluded that, whatever processes were appropriate in a particular case involving the application of the Rice & Asplund principle, it was essential to procedural fairness that there be a clear understanding by the parties and the court of the nature of the court’s enquiry. The Court in Miller & Harrington said, of the particular matter before it:
95.However, if the parties and Barry J assumed that the matter would be determined on the papers, taking the mother’s case at its highest, Barry J went well beyond that parameter.
96.If some other procedure was proposed, that was never made clear to or by the parties. In our view, it is not possible to say that the proceedings were conducted on a mutually understood basis and there is, as a result, merit in the submission that the mother was not accorded procedural fairness.
Discussion of Grounds 1, 3 and 6
57.In Miller & Harrington (supra) the Court posed the question:
105.Adapting the language used by Warnick J in SPS and PLS [supra], the question for consideration is: assuming the evidence of the [applicant] is accepted, is there a sufficient change of circumstances shown to justify embarking on a hearing?
58.That question might be better formulated in another way in the following proposition, namely that there is a requirement:
1.for a prima facie case of changed circumstances to have been established; and
2.for a consideration as to whether that case is a sufficient change of circumstances to justify embarking on a hearing.
I am mindful that Rice & Asplund was a case where the re-litigation related to custody of children and that, in some cases, courts have seemingly countenanced a less rigid position where all that was sought was minor adjustment to orders. For instance, in Aston & Harlow [2008] FamCAFC 66 the Full Court, comprising Finn, Warnick and Murphy JJ, said at paragraphs (53) to (54):
[53]In respect of the mother’s application for leave to reopen parenting issues before Barry J, the mother sought both major and minor alterations. Before us the mother complained that Barry J did not allow her to litigate even the minor alterations.
[54]As seen earlier, his Honour applied the rule in Rice & Asplund (1979) FLC 90-725. Sometimes, not necessarily here, the desirability of avoiding repetitive litigation may be less of a consideration if all that is sought is some fine turning or minor adjustment to orders, but by no means does that mean the principles expressed in Rice & Asplund (supra) have no application in such instances. Here, previous litigation was extensive.
Counsel for the father urged me to apply the so-called rule in Rice & Asplund as a preliminary matter. In doing so, he relied upon the lack of any change of circumstances since 19 March 2012. I accept that in the circumstances of this matter it is indeed appropriate to consider the application of the rule as a preliminary matter.
Turning firstly to the travel advisory restriction issue, the mother’s affidavit did not identify any relevant change in circumstances. It rather contented itself with material which, in broad terms, asserted that travel to African Country B and African Country A would be in the children’s best interests at it would enable them to continue to maintain relationships with family members there.
Further, the mother sought to explain her consent to the orders in paragraphs 6 of affidavit, filed 4 December 2012, as follows:
At the time of settlement my lawyer’s cost had escalated to in excess of $100,000 and in order to finalise the proceedings I had no other choice than to agree to the existing court order.
She did not, however, say that she was unaware of, or did not in fact agree to, the overseas travel orders in the 19 March 2012 orders of Murphy J. At the hearing before me, when pressed as to the existence of any change in circumstances, the mother asserted that it was to be found in the fact that she would not in the future be travelling in Africa as the only adult accompanying the children as in future she would be travelling with her new husband as well. I do not think that is a change of any materiality and I, therefore, find that there is no prima facie case of changed circumstances established by the mother here.
If I am in error in so concluding, then I do not think that the fact that the mother would, in future, be accompanied by another adult if permitted to travel in countries with either a “high degree of caution” or “reconsider your need to travel” Smartraveller warning is a sufficient change of circumstance to justify embarking upon the re-litigation of the very issues consensually resolved less than 12 months ago. Rather, it seems to me that the mother has reconsidered the desirability of the travel restrictions, which those orders imposed upon her, and determined that she is unhappy with them.
It may be that, at the time of agreeing to the orders being made by consent, she intended to later revisit aspects of them when her financial position enable her so to do, but that does not assist the mother’s case in these proceedings. Moreover, it cannot be said that the travel restriction issue, if revisited by the court, would merely be a minor adjustment to the orders of Murphy J. Of course, the paramount question remains the children’s interests. The mother presses upon me correspondence, the authenticity of which for the purposes of this application I assume, of family members residing in both African Country B and African Country A. However, it is plain, even on the mother’s material, that under the March 2012 orders physical contact between the children’s African family members and the children is possible. That is the very reason she is remarrying in African Country C and, indeed, some family members have in the past travelled to Australia.
I am of the view that, weighing the contended benefit of travel to African Country B and African Country A against the prospect of renewed litigation between these parties in relation to the children’s issues, sees the best interests of the children served by terminating this litigation and, by doing so by the application of the rule in Rice & Asplund as a preliminary matter.
I am conscious that there is a second aspect of the mother’s application, namely, an attempt to have order 46(a) of the March 2012 orders recast so as to, firstly, require the parties to consent to, presumably reasonable, time on either side of their holiday time with the children if they are travelling overseas with them and, further, not to unreasonably withhold their consent to the children travelling overseas.
On an interim basis the mother seeks release of the children’s passports to her for the purpose of travel to and from her wedding in African Country C between 6 and 20 April in 2013. The only change in circumstance relevant here seems to be the mother’s wedding, an event the timing of which was of her own creation in the face of, and with the clear knowledge of, the father’s opposition to travel by either children during the school term. I do not think this is a change in circumstances or, if it be, is of sufficient moment to justify embarking upon the re-litigation of the children’s matters. Again, I am of the view that the children’s best interests lie in the parties ceasing to litigate over them. Further, I do not think that this matter is so trivial that the application of the rule in Rice & Asplund should be relaxed.
The father’s explanation for his refusal to accede to the mother’s interim application ultimately seemed to boil down to a desire to underline to the mother that the orders mean what they say, and that she cannot expect to come back to this court whenever she feels inconvenienced by their application. I am not sure that such a rigid stance bodes well for the future of the inevitability of the parties’ ongoing interaction by virtue of their relationship as parents of the children. However, I do note that the father did offer some compromise in his solicitor’s letter of 5 December 2012 and remains, apparently, willing to so permit the children to travel. The mother’s submission about neither Saturday being suitable for her wedding, given travel requirements on each day, is understandable and would be easily accommodated by a further day being agreed to by the father on one or both sides of the dates of the proposed travel. But that sort of minutiae is a matter for the parties and does not justify the intervention of this court or re-litigation of parenting issues.
For the foregoing reasons the mother’s application, filed 3 December 2012, is dismissed. And I so order.
RECORDED: NOT TRANSCRIBED
This is an application for costs, consequent upon my dismissal of the mother’s application seeking both final and interim parenting orders. Pursuant to section 117(1) of the Family Law Act, the starting position is that, subject to the considerations in succeeding subsections, each party to proceedings under the Act are to bear their own costs. Relevant to these proceedings, it is the matters in section 117(2A) which require consideration.
The first of those are the financial circumstances of each of the parties to the proceedings. I am told by Mr Betts, counsel for the father, that the father has a gross income of $450,000, or had that last year, and is likely to have similar this year. From that income, I was told that he will have, inevitably, taxation to pay. He further pays child support of $20,000 per annum, and meets flight costs pursuant to the children’s orders of about $23,000 per annum. I am told that he has only about $60,000 equity in the house, but I was not informed as to the value of the house.
The mother, on the other hand, is employed in the education industry. She earns about $100,000 per annum in that job, and estimated that she would receive a net pay of about $2000 per fortnight. There will be some additional money she earns in a private role. In addition, she will have the child support moneys which she receives of about $20,000 per annum. However, I note that the mother says that the school fees alone for the girls are about $20,000, and the children are involved in numerous extracurricular activities at which they excel.
The mother says she has a debt comprising a mortgage over the former matrimonial home of $350,000, which she estimated required repayments of $300 per fortnight, which, I must say, seems a little light. She also has a small personal loan and credit card balances of about $17,000. Further, she is obliged, by virtue of political and economic circumstances of her parents, to support them, and estimates that she does that to the extent of about $200 per fortnight. I do not think that any criticism could be made of her in relation to that payment.
I therefore think that in relation to sub-paragraph (a), the financial circumstances of each of the parties to the proceedings, that factor favours the mother, and favours her strongly. As to (b), neither party were in receipt of legal assistance. As to (c), the conduct of the parties, true it is that the mother has come to this court within 12 months of there being final parenting orders, however I do note that she did initiate the appropriate processes before doing so, and sought to have the matter mediated, albeit without success, and that, further, she has been acting responsibly insofar as she was without, it appears, accurate legal advice.
She has been acting responsibly by seeking, in advance, the dispensation of the application of the parenting orders to her trip to African Country C for her wedding. Further, I note that the mother asserts that she was not aware of the decision of this court in Rice & Asplund, and that she was first aware of that at 10 am on the day of the hearing. I note that there was no mention made of the Rice & Asplund point in the father’s solicitors’ correspondence to her of 5 December 2012.
In all the circumstances, I do not think that there is conduct on the part of the mother of a kind which is relevant to subsection (c), or, at least, to the extent that there may be conduct, that it is of any moment. True it is, with respect to subparagraph (d), that the proceedings were brought about by virtue of apparently the mother’s lack of perception that the final orders that were made in March of last year were binding and not able to be revisited, but again, I do not think, in the absence of any advice to the contrary to the mother, that that is a matter which could be legitimately the subject of criticism.
As to (e), true it is that the mother has been wholly unsuccessful in these proceedings; however, the father sensibly sought to mitigate his potential exposure to legal costs by seeking to have the Rice & Asplund point determined as a preliminary matter, and, indeed, was successful in having the rule applied at that stage. That necessarily has helped to staunch what would have otherwise been additional costs incurred by him and potentially the mother. Therefore, whilst it is true that the mother has been wholly unsuccessful in these proceedings, it was a lack of success that was able to be arrived at swiftly, rather than after the continual haemorrhaging of the parties’ finances to legal costs.
The final consideration is (f), namely, the offer in writing that was made by the father to the mother on 5 December. The mother says, I think with some justification, that the offer saw the time that the children would be spending in African Country C at a fairly low quantity, and, particularly, they would inevitably be jet-lagged for the first stage of their time in the country. Whilst, clearly (f) is a matter which does potentially assist the father, the other consideration which I give weight is that the father has sought to enforce and rely upon the orders, where, as I have indicated in my principal reasons, it may well be that a less rigid approach would have seen this matter unnecessary to come before the court.
Weighing all of those factors as I do, I decline to make any order for costs against the mother.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 5 February 2013.
Associate:
Date: 25 February 2013
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