Paco & Racina
[2014] FamCAFC 195
•3 October 2014
FAMILY COURT OF AUSTRALIA
| PACO & RACINA AND ANOR | [2014] FamCAFC 195 |
FAMILY LAW – APPEAL – CHILDREN – Where the appellant appeals against final parenting orders that alter a previous sole parental responsibility order – Consideration of Rice v Asplund (1979) FLC 90-725 – Where action involved a person who was not a party to earlier proceedings – Children’s views – Where children’s views influenced by appellant – Where further evidence does not establish error – Where appellant asserts a denial of procedural fairness arising out of collusion by lawyers or a conflict of interest – Where there is no evidence the Independent Children’s Lawyer or counsel were partial, biased or acted improperly – Whether judgment contrary to the weight of evidence – Where most of the complaints are based upon speculation – Appeal dismissed.
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence – Where nothing in that evidence demonstrates error – Application for provision of transcript at court expense – Applications dismissed.
FAMILY LAW – APPEAL – STAY OF ORDERS - Where the substantive appeal dismissed – Appeal dismissed.
| Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 Rice v Asplund (1979) FLC 90-725 |
| APPELLANT: | Ms Paco |
| FIRST RESPONDENT: | Ms Racina |
| SECOND RESPONDENT: | Mr Paco |
| INDEPENDENT CHILDREN’S LAWYER: | John Spence & Associates |
| FILE NUMBER: | PAC | 454 | of | 2012 |
| APPEAL NUMBERS: | EA EA | 126 24 | of of | 2013 2014 |
| DATE DELIVERED: | 3 October 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ryan & Watts JJ |
| HEARING DATE: | 18 June 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 31 July 2013 23 October 2013 |
| LOWER COURT MNC: | [2013] FCCA 951 [2013] FCCA 1853 |
REPRESENTATION
| FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr O'Brien |
| SOLICITOR FOR THE RESPONDENT: | Rafton Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Longworth |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | John Spencer & Associates |
Orders
The appellant mother’s oral application to adduce further evidence be dismissed.
The Application in an Appeal filed by the appellant mother on 20 December 2013 be dismissed.
The appeal in EA 126 of 2013 be dismissed.
The appeal in EA 24 of 2014 be dismissed.
The application for costs by the paternal grandmother against the mother be dismissed.
It is noted the Application in an Appeal filed by the appellant mother on 28 August 2014 was withdrawn.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Paco & Racina and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Numbers: EA 126 of 2013 and EA 24 of 2014
File Number: PAC 454 of 2012
| Ms Paco |
Appellant
And
| Ms Racina |
First Respondent
And
| Mr Paco |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Before the court are
two appeals and a number of applications in appeals brought by Ms Paco (“the mother”) in relation to orders made by
Judge Dunkley on 31 July 2013 and 23 October 2013.
By the July 2013 orders the primary judge discharged an order made on 14 October 2010 that the mother has sole parental responsibility for two children, B and C. Mr Paco is the children’s father. Although he is a party to the appeals he chose not to participate.
The primary judge remade the order for sole parental responsibility in the mother’s favour subject to a condition that the children engage in a nominated therapeutic program. The primary purpose of the therapy was to facilitate the children spending time with Ms Racina, who is their paternal grandmother and a respondent to the appeals. His Honour’s orders provided for a gradual supervised reintroduction of the children having time with their grandmother which culminated in a routine of a one eight hour period on the first Sunday of each calendar month. The paternal grandmother is restrained from permitting the children from coming into contact or communicating with their father when they are with her.
The mother and father separated in November 2008 and in July 2009 the father moved to a South American country where he has lived ever since.
The primary judge found that the mother had a genuine but unreasonable belief that the paternal grandmother was involved in a plot to abduct the children and spirit them to South America or secret them interstate. The children were worried that the paternal grandmother might “steal” them.
By her first appeal (“the substantive appeal”), the mother sought to set aside all bar two of the orders made on 31 July 2013. The two exceptions being orders that the paternal grandmother completes an asthma management course (order 9) and an injunction which restrains the paternal grandmother from permitting the children to come into contact with the father when they are with her. If orders are made as sought by the mother, she would regain the earlier unqualified order for sole parental responsibility and she alone would determine whether and under what circumstances the children might spend time with the paternal grandmother.
The second appeal concerns his Honour’s orders made on 23 October 2013 which gave the previous Independent Children's Lawyer (“ICL”) leave to withdraw and dismissed the mother’s application for a stay of the orders made on 31 July 2013. Although by her Amended Notice of Appeal filed on 6 March 2014 the mother indicated she appealed all of the orders dated 23 October 2013, none of the grounds of appeal relate to the order which gave the ICL leave to withdraw (order 1).
Applications in an appeal
Application to adduce further evidence
By an Application in an Appeal filed on 28 August 2013, the mother sought to adduce further evidence in the appeal. That evidence was contained in her affidavit filed the same day. Before us, the mother acknowledged that the evidence she wished to adduce had already been filed in relation to the stay application and was thus contained in the appeal books. The mother is an unrepresented litigant and as a matter of expediency, we agreed that she could rely on this additional material in the substantive appeal. On that basis, the mother did not seek to press the application that she filed on 28 August 2013 and it was withdrawn.
The first document of this additional material is a statutory declaration by Ms P which is dated 14 August 2013. She recounts an incident on 29 May 2010 in which the mother and children were followed and videoed by a man of South American appearance.
The next document is an email the mother sent to a real estate agent on 3 August 2013. In the email the mother sought confirmation from the agent that the father’s sister sought access to the mother’s home and to the family pets being released. There is no response from the real estate agent.
There follows a letter from Ms K which is dated 21 August 2013. Ms K described herself as an occupational therapist and “Child Focussed Support Worker”. Ms K has known the children since May 2012 and twice a week they participate in a small group session she convenes which is designed to assist them academically and to establish “support relationships”. In her letter she reports on her observations of the children and offers her opinion about what negative effects changing the children’s circumstances may have.
Ms E, who is a children’s occupational therapist, provided a letter dated 23 August 2013 to the mother. She recounts her involvement with the mother and children and expresses an opinion that any disruption to the children’s routine would not be in their best interests.
Ms R is B’s godmother and a close friend of the mother’s. She provided a statutory declaration which is dated 20 August 2013. In her statutory declaration, she outlines her dealings with the mother and the family, in particular, the children’s antipathy towards the paternal grandmother. Her evidence about the children’s views about contact with the paternal grandmother resonates with the evidence given by the family consultant.
The final relevant document is a statutory declaration by Ms S dated 28 August 2013. She is a friend of the mother who said she witnessed unspecified misleading comments and untruths from various members of the paternal grandmother’s family. Her evidence about the children’s attitudes towards the paternal family is consistent with what they said to the family consultant.
None of this material, whether considered individually or taken together, would lead to a conclusion that his Honour’s orders were erroneous or that the further evidence would have produced a different result had it been available at the hearing (see CDJ v VAJ (1998) 197 CLR 172 at [149]).
Oral application to adduce further evidence
The mother also made an oral application at the hearing before us to adduce in the appeal the evidence which is contained in Exhibit A. That application was opposed by the paternal grandmother and the ICL.
The documents in Exhibit A contained a number of medical reports and correspondence in respect of the children.
The only documents of possible significance are a referral letter by Dr G dated 8 July 2012 in relation to C and two reports by Dr L, dated 3 September 2013 (in relation to both children) and 5 September 2013 (in relation to B). In his report of 3 September 2013, Dr L wrote:
...more recently the ex-husband, his mother have been involved wanting access to children and whenever they have exposure to them they get more stressed related to anxiety. [The daughter’s] abdominal pains are related to that.
My impression that both [children] are progressing well with psychological supports and I would suggest that changes involved with the father and his family are having a detrimental effect on the children’s psychological behaviour. I recommend if possible, that the children be protected from all those issues...
Dr L’s report of 5 September 2013 in relation to Bis short:
[The daughter] was reviewed by me today in the consultation rooms. [The daughter] is a 12 year old girl with a past history of epigastric pain, speech problems and anxiety. She is currently at [School] and is in Year 6. I believe her family situation is exacerbating her anxieties. She would benefit greatly with minimal exposure and stress from her father and his family.
The children were referred to Dr L in July 2012 and attended on him for the year preceding September 2013. The mother did not explain why, if she thought Dr L’s evidence was important and relevant, she did not take steps to have it available for the hearing below.
Next, it is to be noted that Dr L’s opinion on 5 September 2013 was that B would benefit greatly with minimal exposure to the father’s family. His Honour’s conclusion that the children’s psychological health would be advantaged by therapy and only eight hours exposure to the paternal grandmother a month, is thus consistent with Dr L’s opinion (our emphasis).
His Honour found that the children were “…stressed, anxious and hyper-vigilant” [20]. His Honour carefully considered the graduated basis upon which the children would spend time with their grandmother, the frequency of that time and the conditions upon which it would take place.
The contents of Dr L’s reports are not inconsistent with the factual findings made by his Honour. In so far as it can be argued that his Honour reached a different conclusion to Dr L, nothing in the evidence which the mother sought to adduce demonstrates that the orders under appeal are erroneous (see CDJ v VAJ (1998) 197 CLR 172, particularly at [109]).
Consequently the mother’s oral application to adduce the further evidence in the substantive appeal will be dismissed.
Mother’s application for the transcript
By her Application in an Appeal filed 20 December 2013, the mother sought orders that at the court’s expense she be provided with transcripts of the proceedings before the primary judge. Self-evidently, the transcripts of the proceedings were not included in the appeal books. We asked the mother to indicate those grounds of appeal or other matters she said required reference to the transcripts. Consideration would thus be given as to whether the provision of a transcript was necessary for her to be able to adequately prosecute the substantive appeal.
During oral submissions, the mother said the transcript was relevant to a number of matters.
Collusion by lawyers
According to the mother the ICL failed to adduce important evidence at trial. It is common ground that about one month after the hearing the paternal grandmother’s lawyer was employed by the ICL. It is for this reason that the ICL was granted leave to withdraw.
The mother said the transcript was necessary for her to establish that counsel for the paternal grandmother and counsel for the ICL had colluded to prepare complementary cross examination of the mother and that they made similar submissions concerning the orders which his Honour should make.
The mother said that in hindsight she realised there was evidence that should have been placed before his Honour by either the paternal grandmother’s lawyer or the ICL but was not. The inference she wished to have drawn from this omission was that the lawyers had conspired to not adduce that evidence.
Apart from the mother’s accusation, she gave no particulars as to any behaviour or statement made by either or both the lawyers which would substantiate her hypothesis. The objective facts neither substantiate nor give rise to the inference asserted by the mother. There is no need to go to any part of the transcript to take these contentions any further.
The trial judge’s comments about medical evidence
According to the mother, the transcript of the stay hearing on 23 October 2013 would reveal a comment made by the trial judge about the material contained in Exhibit A. Before the trial judge on the stay application, the mother unsuccessfully sought permission to adduce evidence as contained in the exhibit. It is the mother’s contention that his Honour said that if she had produced that evidence at trial, the “orders would have gone more in [her] way”, and that “the orders would have weighed more in [her] favour”.
In Zanatta v McCleary [1976] 1 NSWLR 230 at 233, Street CJ said:
… A Judge is remote from the contest and from the parties and his subsequent statements implying error on his part or procedural irregularity have, in general, no evidentiary significance as between the parties themselves …
It follows, that we do not accept that even if the transcript of the stay hearing included the remarks which the mother attributes to his Honour, that this could affect the outcome of the appeals.
Conclusion about provision of transcript
Apart from the two topics discussed, the mother made passing references as to how the transcript of the proceedings below would be of assistance but did so with such generality that we were unable to discern the nature and possible significance of the transcript to the appeal.
We are unable to discern how the transcript of the proceedings was needed in order to establish any ground upon which the mother relied and thus the mother’s application for provision of transcript will be dismissed.
The substantive appeal (ea 126 of 2013)
A summary of the mother’s grounds of appeal are set out below.
It is somewhat difficult to discern the precise grounds upon which she bases this appeal, but based on the mother’s written material and her oral submissions made, we understood the mother to assert the following errors:
a)His Honour ought not to have made orders 1 to 4 as in so doing he offended the “principle” expressed in Rice v Asplund (1979) FLC 90-725. (Ground 1)
b)His Honour failed to give sufficient weight to the children’s expressed views against spending time with the paternal grandmother. (Ground 2)
c)The mother complains about a denial of procedural fairness arising out of a conflict that she asserts existed, given that the lawyer for the paternal grandmother commenced working for the ICL’s firm one month after the conclusion of the hearing. (Ground 3)
d)
That generally, the judgment was contrary to the evidence before the trial judge and in particular, the mother complained that firstly
his Honour inappropriately relied upon the expert evidence; secondly, that his Honour failed to take into account the effect on the children of being required to see their grandmother, and thirdly, failed to make orders which guaranteed the children’s safety. The mother also asserts the new evidence she now provides would lead to a different result had that evidence been available at the hearing. (Ground 4)
Ground 1 – Rice v Asplund
As we mentioned earlier, in proceedings undertaken between the children’s parents, orders were made on 14 October 2010 granting the mother sole parental responsibility. His Honour discharged that order and remade it attaching a condition that the children attend therapy as a precursor to spending time with the paternal grandmother. The mother challenges the trial judge’s finding that there had been a significant change in circumstances sufficient to justify another hearing about parental responsibility and relies upon Rice v Asplund and the cases that follow to assert that his Honour erroneously varied the 2010 sole parental responsibility order.
There are two fundamental answers to this contention. Firstly, the order for sole parental responsibility was made in proceedings between the parents and in which the paternal grandmother was not a party. Secondly, his Honour identified significant changed circumstances, namely, evidence in two reports from a psychologist dated 2011 and most relevantly, the opinions expressed by the family consultant at [58] of her report dated 3 October 2012. The family consultant said:
[The mother] is opposed to the children receiving counselling. In her mind the children engaging in counselling would reactivate their fears, perhaps triggering a psychological regression that could prove overwhelming for them. She is strongly of the view that the children should wait until they are much older before they receive counselling, and claims this view was the course of action recommended by her own counsellor. This assessment finds this approach (which is unlikely to accurately represent the view of the counsellor) to be unacceptable and put the children at risk of developing debilitating anxiety disorders which could compromise their education and their emotional and social development.
In short, there was ample evidence to establish a relevant significant change in the children’s circumstances which we are satisfied his Honour analysed appropriately.
This ground of appeal fails.
Ground 2 – the children’s views
The mother submits that his Honour failed to give appropriate and sufficient weight to the expressed views of the children.
Disagreement only on matters of weight by no means necessarily justifies reversal of a discretionary judgment (Gronow v Gronow (1979) 144 CLR 513).
His Honour was well aware and made frequent reference to the fact that the children did not wish to see the paternal grandmother. For example, at [34] of the reasons for judgment, his Honour found that spending time with the paternal grandmother would be “…contrary to each of the children’s strongly held views”. Earlier, at [17], his Honour said that the children were “…genuinely fearful of being abducted…” by the paternal grandmother and that those fears had been instilled in them by the mother. Again, at [21], the trial judge commented that the children had a “…real fear of the paternal grandmother…” which was instigated by the mother without a reasonable basis.
His Honour however balanced the views against a finding at [37] that “[s]pending time with the paternal grandmother is very likely to help the children, when coupled with therapy, to become less vigilant and less anxious”. His Honour’s finding clearly adopts the family consultant’s evidence at [55] of her report that:
[The children] similarly believe that they could be kidnapped and taken away from their mother, perhaps never to see her again. This possibility fills them with terror. Their fears have become associated with their paternal grandmother, who in their mind is quite capable to being instrumental in their kidnapping. This assessment finds that the children’s fears are genuine and have been instilled by their mother, whose beliefs are also genuinely held.
His Honour was aware of the children’s views and that they were strongly expressed. He was clearly concerned about the mother’s influence in relation to the formulation of their views which he found was psychologically damaging [22]. Thus, his Honour was satisfied that consistent with the family consultant’s evidence, the help the children would gain by spending time with their paternal grandmother warranted greater weight than their undoubted opposition to doing so.
The mother has failed to demonstrate that his Honour erred in his treatment of the children’s views.
Ground 3 – procedural fairness
By this ground the mother asserts that she was denied procedural fairness. According to her, because of bias against her on the part of the ICL and/or her counsel, the trial was unfair. The mother alleged actual bias by the ICL. It was not her case that there was perceived or apprehended bias.
This challenge is predicated on the mother’s assertion that the ICL colluded with the paternal grandmother’s solicitor who joined the ICL’s practice, one month after the hearing. It is the mother’s contention that these employment changes must have been agreed long before they were implemented. Thus, she contends that she and the court could confidently conclude that the ICL had colluded with the paternal grandmother’s solicitor. It follows that, rather than represent the children’s best interests, the ICL wrongly aligned the children’s case with that presented by the paternal grandmother.
First, other than by mere assertion, the mother did not provide any evidence in support of her hypothesis that there was collusion between the ICL and the grandmother’s solicitor.
But more importantly, as we have already explained, his Honour gave significant weight to the expert evidence and his orders in effect implement the expert’s recommendations. A fair reading of the reasons for judgment reveals that it is based on his Honour’s view of the evidence and not the fact that the orders he went on to make were advanced by the ICL.
In Knibbs & Knibbs [2009] FamCA 840, Murphy J said at [44]:
…the fact that an ICL has a “view” about a particular matter or issue, does not necessarily bring with it a finding of partiality. Indeed, it is frequently the duty of an ICL to come to a view contrary to that contended for on behalf of a party if, in their proper, considered, professional judgment, the evidence points to such a conclusion.
and, at [54]:
… neither an ICL nor an ICL’s view decide a case; a judge does. Submissions by ICLs … are likely to be accorded appropriate respect. But their views of the case or the evidence in the case can be, and are, rejected by courts.
(original emphasis)We agree.
No perceived bias was established by the mother and there is nothing in
his Honour’s reasons that would indicate that the outcome was tainted by collusion between lawyers. The mother was unable to direct us to any evidence that would support her contention that the ICL and her counsel were partial, biased or acted improperly.
There is no merit in this ground.
Ground 4 – orders contrary to the weight of evidence
By this ground, the mother asserts the orders appealed were contrary to and inconsistent with the weight of the evidence. In essence, she makes three complaints. Firstly, his Honour inappropriately relied upon the expert evidence. Secondly, that his Honour failed to take into account the effect on the children of being required to see their grandmother, and thirdly, failed to make orders which guaranteed the children’s safety.
In relation to the expert evidence, the focus of the mother’s challenge concerned his Honour’s treatment of two reports from Ms M who is a consultant psychologist who provided an opinion about the impact of incidents of domestic violence and harassment on the children. These reports were obtained as part of a victims compensation claim. Both reports were issued in September 2011 and relate to assessments undertaken in August 2011.
In relation to Ms M’s evidence, the primary judge found, at [13]-[14]:
In [Ms M’s] opinion:
…[B’s] scores on the scales of Anxious/Depressive behaviour, Somatic complaints, Thought Problems, Attention Problems and Rule-breaking behaviour were in the clinical range.
…
[B] appears to have been affected by domestic violence. She worries that [her] mother might not be safe and is concerned that her father might come back into their lives. [B]has negative feelings towards her father and has become wary of men, according to her mother. She presents as an anxious girl…
…[B] will benefit from some counselling to address her feelings of anxiety.
In [Ms M’s] opinion:
…[C] presents as an anxious boy who can be withdrawn at school…
…
[C] will benefit from some counselling to address his feelings of anxiety.
(original emphasis) (footnotes omitted)His Honour accepted Ms M’s recommendations that the children receive counselling. Although the mother does not seek to impugn Ms M’s evidence, she says that his Honour failed to appreciate that the children’s anxieties emanates from their being exposed to family violence perpetrated by the father. It is true that in relation to both children, Ms M opines that each appeared to have been affected by domestic violence. However, she was also clearly concerned that the children “…have been exposed to the bitter aftermath of their parents’ separation” (opinion at [6]) and that she does not say that the children’s feelings of anxiety are solely attributable to their father’s violence. It follows, that we cannot agree with the mother that Ms M’s reports establish that the children’s anxiety emanated from a set of circumstances that no longer existed. In other words, from the father who they no longer saw.
Although it is not entirely clear, we understood the mother to assert that
his Honour fell into error by his acceptance of the evidence contained in the family report which, at the time of hearing, was 10 months old. It will be recalled that the mother’s case before his Honour was that the children were fearful and anxious about spending time with their paternal grandmother. On this point, the mother’s evidence was on all fours with the children’s views expressed to the family consultant. The significance of this, as was submitted before us by counsel for the ICL, is that there was broadly consistent evidence about the children being in a state of anxiety which spanned almost two years. We are unable to agree with the mother that his Honour erred in the manner in which these reports were considered.
The mother also asserted that his Honour placed an inappropriate level of reliance upon evidence that was too old to be reliable or relevant. We agree with counsel for the ICL that if the mother believed that the family report needed to be updated prior to the final hearing, it was incumbent upon her to apply for such an order. She did not do so.
As to the mother’s assertion that the primary judge failed to consider the effect on the children of being required to spend time with their grandmother, the reasons are replete with references to his Honour’s concern about the effect of orders which would require the children to do so. However, his Honour, as he was entitled to do, accepted the expert evidence about the benefit to the children of having time with the paternal grandmother and went on to carefully construct an arrangement which dovetailed therapeutic intervention for the children, with careful constraints on the amount of time. We have no doubt that the orders were designed to address the concerns raised about the effect of orders of this type on the children.
The final matter to be considered in relation to ground 4 concerns the mother’s contention that his Honour failed to make orders which guaranteed the children’s safety. Although somewhat opaque, we understood the asserted error to be that his Honour failed to make an order in the nature of an apprehended domestic violence order which restrained the paternal grandmother from removing the children from New South Wales. The second safety issue concerned the manner in which his Honour took into account C’s asthma.
It will be recalled that the mother asserts that the paternal grandmother is involved in a complex but unspecified plot with the father to remove the children from Australia or interstate. The primary judge was satisfied that the mother’s fears lacked foundation and there was no risk the paternal grandmother would abduct the children.
It is appropriate to observe that the mother did not seek from his Honour an order equivalent to that which may be made under State domestic violence laws and it is not open to her to complain on appeal about his failure to make such an order (Metwally v University of Wollongong (1985) 60 ALR 68).
As to the removal of the children from the country, although satisfied that this was not a risk, at [55] his Honour explained that a watch list order would be made so as to provide “comfort” for the mother. There is no error shown in the manner in which his Honour approached these issues.
Turning then to the manner in which the primary judge dealt with the fact that C is asthmatic, the mother argued before us that the paternal grandmother would not be sufficiently proactive should C suffer an asthma attack whilst in her care. This was a matter of assertion and not evidence. In any event, it is clear from the orders made by his Honour that he was alive to the fact that C is asthmatic and the concerns of the mother. For these reasons he required the paternal grandmother to attend a course at the Asthma Foundation.
We also note in passing that the mother’s case before us was that time for the children with the paternal grandmother would be “fine” in a couple of years. Given the children’s ages, it is difficult to understand why two more years would lessen the risk allegedly posed by the paternal grandmother.
Underlying most, if not all, of the mother’s complaints was the speculative nature of the risks and concerns that she asserted. For his Honour to have found the existence of those risks he would have had to draw inferences which the evidence did not support. For example, the mother asserted that because some years ago the paternal grandmother went to the children’s school without her knowledge, this compelled a finding that the purpose and intent of her so doing was to kidnap the children. We do not agree that this inference was available.
In short, we are satisfied that the orders were consistent with the weight of the evidence. As a consequence this ground is not made out.
Conclusion
The mother has not established any ground for appeal and consequently appeal EA 126 of 2013 will be dismissed.
Stay appeal (EA 24 of 2014)
Given that the substantive appeal has been dismissed, the mother’s appeal against his Honour’s decision to refuse a stay will also be dismissed.
costs
The ICL and the paternal grandmother sought costs against the mother.
The mother provided brief details of her financial circumstances and established that her financial circumstances are quite precarious.
The ICL then withdrew the costs application.
The paternal grandmother pressed her application for costs but counsel for the paternal grandmother appropriately acknowledged that the mother was impecunious which, in this case, weighed heavily against an order for costs.
We take into account that the grandmother is in receipt of legal aid.
We are satisfied that an order for costs against the mother would not be proper.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan & Watts JJ) delivered on 3 October 2014.
Associate:
Date: 3 October 2014
10
5
6