Pender & Haywood
[2007] FamCA 1526
•21 December 2007
FAMILY COURT OF AUSTRALIA
| PENDER & HAYWARD | [2007] FamCA 1526 |
| FAMILY LAW - APPEAL – INTERIM PARENTING ORDERS – Whether Federal Magistrate erred in the exercise of discretion in making interim parenting orders which provide for two and a half year old twins to live with the respondent father in Sydney – Where mother asserted she was temporarily required to relocate from New South Wales to Queensland following a family emergency – Where mother’s undertaking as to removal of children breached by taking the children to Queensland – Whether the Federal Magistrate erred in applying the presumption of equal shared parental responsibility – Whether there was evidence to rebut the presumption – As not being in the best interests of the children – Where Federal Magistrate found parties had a co-operative parenting regime - Federal Magistrate did not err in making order for equal shared parental responsibility – Whether Federal Magistrate erred in the exercise of his discretion in failing to address the competing proposals of the parties – Whether Federal Magistrate failed to adequately address the mother’s proposals, including effect on the children of separation from their primary caregiver and half sibling – Whether Federal Magistrate failed to consider the practicalities of the mother maintaining a meaningful relationship with the children whilst she lived in Queensland - Appeal allowed – Remitted for a further interim hearing (if circumstances require further interim orders). FAMILY LAW - COSTS – Appeal against interim orders allowed – Certificates granted under the Federal Proceedings (Costs) Act 1981 (Cth) to each party for the appeal and re-hearing (if necessary). |
| Family Law Act 1975 (Cth) Part VII, s 4, s 60CC, s 61DA Bennett & Bennett (1991) FLC 92-191 |
| APPELLANT: | Ms Pender |
| RESPONDENT: | Mr Hayward |
| FILE NUMBER: | SYC | 5726 | of | 2007 |
| APPEAL NUMBER: | EA | 113 | of | 2007 |
| DATE DELIVERED: | 21 December 2007 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 28 November 2007 |
LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 September 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 713 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Johnston |
| SOLICITOR FOR THE APPELLANT: | Norman & Kingston |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | Fox O’Brien |
Orders
That the appeal is allowed.
That the orders made by Federal Magistrate Kemp on 18 September 2007 be set aside.
That the father’s application for interim parenting orders filed 14 August 2007 be remitted for re-hearing before a Federal Magistrate other than Federal Magistrate Kemp as soon as practical.
That the Court grants to the appellant mother a costs certificate pursuant to s 9 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 appellant in respect of the costs incurred by her in relation to the appeal.
That the Court grants to the respondent father 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 in respect of the costs incurred by him in relation to the appeal.
That the Court grants to each of the parties 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 of the parties in respect of the costs incurred by them in relation to the re-hearing.
IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Boland delivered this day will for all publication and reporting purposes be referred to as Pender & Hayward.
| THE APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 113 of 2007
File Number: SYC 5726 of 2007
| Ms Pender |
Appellant
And
| Mr Hayward |
Respondent
REASONS FOR JUDGMENT
Introduction
MP and GH are the parents of twins MSH and ARH. The twins are two and a half years old having been born in May 2005. The parents, who for convenience in these reasons, I will refer to as “the mother” and “the father”, are in dispute about caring arrangements for the children following their recent separation. Interim parenting proceedings were heard by Federal Magistrate Kemp and a reserved judgment delivered and orders were made by his Honour on 18 September 2007. This is the mother’s appeal from those orders.
The necessity for the Federal Magistrate to make interim orders arose principally because the mother, in unusual circumstances which I will explain later in these reasons, said it was necessary that she live in a town located approximately two hours drive from Brisbane, (“the small town”) for a period of three to six months. The father opposed the mother’s proposal to move the children to the small town to live with her, and sought orders the children live with him in Sydney.
The competing applications before his Honour comprised an application by the father in which he sought, on an interim basis, that the children “be returned to and live with the father”, and that the mother spend time with the children as agreed between the parties. The father also sought orders that the mother be restrained by injunction from removing the children from the matrimonial home. For her part, the mother sought interim orders that the children live with her, and spend defined periods of time with the father each alternate weekend. She sought in the event she lived in Queensland that the children spend time with the father for three weekends out of four in Queensland, with the father collecting and returning the children from the mother’s residence in Queensland, and for one weekend in Sydney “with the mother to be responsible for transporting the children back to Sutherland [semble] Queensland.”
The Federal Magistrate made orders that the parents have equal shared parental responsibility for the children, that they live with the father at the parties’ home in the Sutherland Shire, NSW (“the matrimonial home”), and if the mother “relocates” to the matrimonial home, or a locale in close proximity, she spend equal, but undefined, time with the children. In the event the mother did not return to the matrimonial home or the Sydney locale, the orders provided for her to spend time with the children as agreed by the parents, or failing agreement, on any day between 8am and 8pm when she was in Sydney (having first given 24 hours notice to the father). An application for a stay of the orders was refused by the Federal Magistrate on 21 September 2007.
The mother’s Amended Notice of Appeal filed 2 November 2007 and submissions in support thereof challenge his Honour’s orders on four bases:
· That the principles espoused in Goode & Goode (2006) FLC 93-286 had not been applied, and in particular there was no evidentiary basis for his Honour’s finding that the children had suffered instability in their living arrangements from 10 August 2007.
· That his Honour erred in law in applying the presumption of equal shared parental responsibility in circumstances where there was sufficient evidence to rebut the presumption.
· That his Honour failed to afford sufficient weight to the relationship of the twins with their nine year old half sibling.
· That his Honour erred in failing to give sufficient weight to the practical difficulties and high cost of transport when making his orders.
Before me, counsel for the mother submitted that, in the event the appeal was allowed, there was insufficient evidence before the Court for me to re-exercise the discretion, and the matter would require remission for a further interim parenting hearing. The father’s counsel did not demur from that submission.
Background
The father was born in July 1968 and is aged 39 years. He is engaged in full-time employment as a customer services manager.
The mother was born in January 1974 and is aged 33 years. At the date of the hearing she was engaged principally in home duties, and worked as a part time masseur. The mother has a child of a previous relationship, JP, aged 9 years. JP lived with the parents throughout their cohabitation.
The parents commenced their cohabitation in November 2004, and they were married in March 2006. According to the father they separated in July 2007.
The children were born prematurely in May 2005. The mother was responsible for the care of the children and JP. However, for approximately one year prior to separation, the children attended day care each Monday and Friday from about 7am to 5.30pm. When the father was home he shared in the care of the children. The mother asserted the father worked long hours from Monday to Friday, and that he attended work on Saturdays. The children both suffer from asthma and eczema.
In approximately 1995 the mother commenced occupation of the matrimonial home. Title to the home was subsequently transferred to the joint names of the parents when they jointly obtained a mortgage secured over the title to the matrimonial home.
In August 2006 the mother was diagnosed as suffering “a mild depression” and prescribed Effexor. The mother deposed that she was no longer taking Effexor.
In January 2007 the maternal grandmother provided funds for the purchase of a motel in the small town. The motel was acquired as an asset of a discretionary trust (‘the trust”). The mother asserted the beneficiaries of the trust were her family members, including herself and her brother. The trustees of the trust are the mother and her brother. After the purchase of the motel it was operated by the mother’s parents. The mother asserted the motel had liabilities of approximately $10,000.00 at the date of hearing and she had retained an accountant to prepare financial statements to accurately ascertain the financial position of the trust.
In April 2007 the parties travelled to Queensland for a holiday and visited the mother’s parents at the small town. The mother asserted the maternal grandmother appeared unwell during the visit.
On 1 June 2007 the maternal grandmother was admitted to hospital.
On 23 June 2007 (according to the father) or on 2 June 2007 (according to the mother), the mother travelled to the small town without the children and JP to visit the maternal grandmother who was gravely ill. The father travelled to the small town three days after the mother with the children and JP.
Following deterioration of the maternal grandmother’s health, the mother flew to the small town on 7 July 2007, (according to the father), or (according to the mother) on 5 July 2007, and on 10 July 2007 the father also travelled to the small town with the children and JP.
On 8 July 2007 the maternal grandmother died at the small town hospital. Her funeral was held on 17 July 2007.
On 15 July 2007 without prior notification to the mother, the father left the small town and returned to Sydney with the children, but not JP.
On 17 July 2007 the mother returned to Sydney leaving JP in the small town. The father and the children were not at the matrimonial home. The parties are in dispute about proposals conveyed to each other on that day. By letter dated 17 July 2007 solicitors instructed by the father wrote to the mother advising that the father did not agree to the children residing in the small town, and that he proposed to seek orders the following day in the Family Court restraining the mother removing the children, and granting him “interim residency Orders”.
On 18 July 2007 the mother flew to the small town to collect JP.
On 19 July 2007 Sydney solicitors retained by the mother wrote to the father’s solicitors advising the mother would be returning “from caring for her father with the child JP on Sunday the 22nd of July and anticipates that the younger children will be there to see her”. The solicitors advised they were instructed to accept service of documents.
On 20 July 2007 the mother’s solicitors wrote to the father’s solicitors in the following terms:
...
Our client has instructed us that she hereby undertakes that she will not attempt to remove the twins to Queensland pending agreement between the parties or court order to that effect.
On that basis, we understand that the children will be made available to her as soon as possible.
On 22 July 2007 the mother returned from the small town and took up residence in the matrimonial home. From 22 July 2007 to 10 August 2007 the parents resided separately and apart in the matrimonial home.
On 9 August 2007 the mother was to travel to the small town for a short period with the children and JP remaining in the care of the father. The parents argued and the Police were called. The mother did not travel to Queensland that evening. The mother asserted it was necessary for her to be in the small town to attend to matters relating to her mother’s estate, and to put proper arrangements in place for the conduct of the motel pending its proposed sale as her father was ill, and lacked the necessary cognitive ability to manage it.
On 10 August 2007 the mother left the matrimonial home with the children and JP. She sent a text message to the father advising she would be away for the weekend.
Early on 12 August 2007 the mother sent the father a text message saying she would return home on Monday or Tuesday. Later that morning the mother telephoned the father and advised she would have to stay in the small town for a longer period. The mother enrolled JP in the small town’s State School in Grade 4.
On 14 August 2007 the father’s application for final and interim orders was filed in the Federal Magistrates Court, Sydney Registry. The proceedings were listed in the Federal Magistrates list on 12 September 2007, and although only listed for a procedural hearing, were, at the request of the legal representatives, heard on that day. His Honour delivered reserved reasons for judgment and made orders on 18 September 2007.
On 21 September 2007 his Honour heard and dismissed a stay application filed by the mother. On that day orders were made by consent for the father to spend a block period of two weeks with the children in Sydney with the father collecting the children from Brisbane airport.
Grounds of appeal
The appeal was confined to four grounds which were argued on the bases I have summarised in paragraph 5 of these reasons. The grounds as set out in the Amended Notice of Appeal are as follows:
1.That his Honour erred at law in failing to apply the proper principles identified by the Full Court in Goode and Goode (2006) FLC 93-289 and in particular in making a finding that the children have suffered from instability in their living arrangements since 10 August 2007 and that instability continues in circumstances where his Honour found that the mother was the primary care giver to the infant 2 year old twins.
2.That his Honour erred at law in applying the presumption of equal shared responsibility in an interim proceeding.
3.That his Honour erred in the exercise of his Honour’s discretion to give sufficient weight to the relationships of the subject children with their siblings in their lives pursuant to section 60CC(3)(d) in making the orders that were made.
4.That his Honour erred in the exercise of his Honour’s discretion in failing to give sufficient weight to the practical difficulties and high cost of travel pursuant to section 60CC(3)(e) in making the orders that were made particularly given the ages of the subject twins being 2 years and three months at the date of hearing.
In his written submissions the mother’s counsel dealt with grounds 1 and 2 concurrently and thereafter argued grounds 3 and 4. In his oral submissions he first argued ground 2 and then grounds 1, 3 and 4. I propose to follow a similar course to counsel’s oral submissions, although it was apparent from the submissions that there is an overlap between matters asserted in ground 1 and those asserted in grounds 3 and 4.
Appellate principles
This is principally an appeal against a discretionary judgment. The limited circumstances in which the Full Court should interfere with a discretionary judgment are well known. In Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90-716 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight.
In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828, Kirby J said at 230 – 231; (footnotes omitted):
Discretionary and evaluative decisions
186. A number of general propositions may be stated:
1. Neither this Court, nor the Full Court in relation to appeals to it, has authority to disturb a decision under appeal simply because the appellate judges, faced with the same material, would have reached a conclusion different from that under appeal. To approach the appellate function in such a way would contravene established authority. It would involve one level of the judicial hierarchy, without lawful warrant, intruding into the decisions of another. To authorise appellate disturbance, where the decision under appeal is discretionary or involves quasi-discretionary evaluation, it is necessary for those mounting the challenge to demonstrate that, in reaching the orders the subject of the appeal, the court below has acted on a wrong principle or (although the precise error of principle cannot be identified) has reached a conclusion which is plainly wrong. Obviously, what is “plainly wrong” will vary in the eyes of different beholders. It is not necessary for an appellant to demonstrate the kind of unreasonableness that must be shown to authorise judicial intervention in the decision of an administrator otherwise acting within power. The reference to “plainly wrong” is designed to remind the appellate court of the need to approach an appeal with much caution in a case where an error of principle cannot be clearly identified.
2. Such reasons for appellate restraint are of general application. However, they have particular relevance to appeals within, and from, the Family Court of Australia. This is because of the functions and purposes of that Court and the difficult and evaluative decisions which it often has to make. The peculiar nature of decisions relating to the intensely personal questions of the division of the property of parties to a failed marriage and the welfare of their children makes it essential that those who decide appeals respect the onerous responsibilities of those whose decisions they review. They need to recognise that it is of the very nature of such decisions, including those relating to the residence of children, that any two decision- makers may, with complete integrity and upon the same material, often come to differing conclusions. This is an inescapable feature of the nature of this jurisdiction.
3. An additional peculiarity of appeals within, and from, the Family Court is that, in respect of what in Australia are now called “parenting orders”, very vulnerable and significant interests are at stake. It is commonplace to say that, in all appeals, public and private costs and the stresses, delays and other burdens of litigation, are reasons for adding an element of self-restraint to those ordinarily proper to the discharge of appellate judicial functions. Retrials in civil cases following an appeal have been described as “an enormous evil”, to be avoided as far as possible. Whilst this rather emotional phrase may overstate the dangers, the public costs of litigation have lately come to be given more weight in such decisions. In family disputes, and particularly those relating to the welfare of children, there are special stresses. They tend to pull in opposite directions. On the one hand, it is highly undesirable that arrangements for the residence, education, health and familial relationships of a child should be needlessly disturbed by successive court orders. Such changes may add intolerably to the tensions which a child, fought over by members of the family, already feels. On the other hand, so important are such decisions for the life of the child and its relationships with the parents, siblings and other family members, that it is proper that the courts should take special pains, so far as they can, to avoid decisions impermissibly distorted by factual or legal error, by error of principle, by prejudice or by giving weight to irrelevant considerations.
Ground 2
(a) The challenge to his Honour’s finding that it was appropriate to make an order for equal shared parental responsibility.
The mother’s counsel commenced his oral argument directed to ground 2, perhaps because the Federal Magistrate first dealt with the question of equal shared parental responsibility in his reasons for judgment. For convenience I will also commence with this ground. It is also convenient that I do so because of the overlap of issues in grounds 1, 3 and 4.
The principal thrust of the mother’s written and oral submissions in respect of ground 2 was that his Honour erred in applying the presumption that it was in the children’s best interests that the parents have equal shared parental responsibility for them.
In his written submissions the mother’s counsel argued that:
…there was a body of evidence on the interim hearing which would have persuaded his Honour that the presumption was rebutted. That evidence included the mother’s primary care of the children, the age of the twins, the effect on [sic] a split from the mother and their brother [JP], the father’s very long working hours and the mother’s willingness to contribute to the costs of the father’s time with the children as proposed by her. (appellant’s submissions p 5, paragraph 6)
Counsel further argued that an order sought by the mother in her Response that the parties be responsible for the long term care, welfare and development of the children was framed in language relevant to the Act prior to the introduction of the Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) (“the amending Act”) and “had the orders been drafted in the terms of the law as it now exists an order in terms of paragraph 2 would not have been sought, given the submissions made on behalf of the mother.”
In his oral submissions, the mother’s counsel referred to the fact that his Honour had raised with the father’s counsel whether or not the presumption should apply, and particularly referred to the exchange between the mother’s solicitor and the Federal Magistrate at the hearing about the presumption. It is useful for me at this point to set out that exchange:
…[y]our Honour, if I can – my submission for presumption does apply. Of course, it does under section 61D(a)(i), [sic] however, because of the nature of an interim hearing it is not possible to rebut the procedures – rebut the presumption at this point in time and, certainly, the exceptions in subsection (ii) [sic] do not apply – well, there is some domestic violence alleged but, certainly, on my understanding of the authorities the domestic violence alleged was at the lower end of the scale and certainly would not trouble your Honour as to finding whether or not the presumption applies.
However, in any event, section 61D(a)(iii) [sic] does provide that when an interim order was [sic] being made the presumption need not apply unless it is appropriate. It is our submission, that that is the authority – that is the provision which your Honour would rely upon here in finding that the presumption is not appropriate…
(Transcript, 12 September 2007, p 14)
The written submissions of the mother’s counsel are clearly predicated on the basis, not that there was an exclusionary factor negating the presumption, but rather in reliance on s 61DA(4), that is, there was sufficient evidence before his Honour that it would not be in the children’s best interests for the parents to have equal shared parental responsibility.
Relevant law
The amending Act introduced a new Part VII into the Act dealing with applications concerning children. The framework of the amendments is discussed in detail in Goode and Goode at paragraphs 5-13.
As this appeal has focused substantially on s 61DA it is appropriate that I set out that section in full:
Section 61DA
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In Goode the Full Court afforded guidance to judicial officers hearing interim parenting applications in paragraphs 81 and 82 by setting out a series of relevant steps which could usefully be taken by such officers to ensure proper consideration of relevant facts and law in determining interim parenting applications. The matters the Full Court enumerated are as follows:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.In an interim case that would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Goode the Full Court discussed the circumstances in which a judicial officer hearing an interim application may find it appropriate to rely on s 61DA (3) and not make an order for equal shared parental responsibility. At paragraph 78 the Full Court said:
The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that s 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.
Did his Honour err in applying the presumption at this interim hearing?
In commencing my discussion of this asserted error, it is relevant to consider first the actual applications before his Honour, and the positions adopted by the legal representatives before him. I then propose to discuss the manner in which his Honour in his reasons dealt with the question of equal shared parental responsibility, and later his consideration of the objects and principles underpinning Part VII, relevant s 60CC matters, and the parenting orders directed to the time the children should spend with each of the parents.
The father’s application for both interim and final parenting orders included no specific application for an order for equal shared parental responsibility. Of course, by making a parenting order under the Act, unless relying on
s 61DA(3) in an interim application, it is mandatory after the passing and commencement of the amending Act for a court to apply the presumption unless the presumption is excluded by reason of abuse or family violence, or rebutted as not being in the child’s best interests. Therefore, notwithstanding no specific order was sought for equal shared parental responsibility, by reason of the very nature of the father’s application, s 61DA of the Act was likely to be applicable in the proceedings on an interim basis, and would be applicable at the final hearing.
By contrast, the mother sought, albeit in language which was frequently employed prior to the commencement of the amending Act, on an interim basis, an order that the parents have joint responsibility for long term decisions concerning the children. As discussed in Goode, absent displacement by an order, the parents had parental responsibility for the children under
s 61C which parental responsibility could be exercised either jointly or severally, and thus technically the seeking of such an order was unnecessary.
What is clear was that the mother did not seek that she have sole long term parental responsibility, or responsibility for one aspect of parental responsibility (see Newlands & Newlands (2007) 37 Fam LR 103).
The extract from the transcript (which I earlier set out) of the submissions made by the solicitor for the mother to his Honour as to whether or not he should rely on s 61DA(3) is somewhat confusing, or may be regarded as slightly ambiguous, although on balance it appears that he submitted the Federal Magistrate should not make an order for equal shared parental responsibility. The father’s position about whether an order for equal shared parental responsibility should be made was also somewhat ambiguous, as illustrated by the following exchange between his Honour and counsel:
FEDERAL MAGISTRATE: Save for the matters which are agreed, any matters in dispute will have to go to a defended - to a hearing, but in light of that I was proposing that [sic] the parties were agreeable that I would not make any determination of parental responsibility at this stage, and what I am looking at is purely the issue of the - the - where the children will live.
MR HODGSON: Yes. Although, I would not be making that concession, your Honour, if in a sense - I mean, the - the presumption of equal shared parental responsibility in making parenting orders certainly extends to interim - - -
FEDERAL MAGISTRATE: It does.
MR HODGSON: - - - interim applications and obviously, your Honour - - -
FEDERAL MAGISTRATE: I then - - -
MR HODGSON: - - - in - - -
FEDERAL MAGISTRATE: - - - make findings as to whether it has been – it should not apply or whether it has been rebutted.
MR HODGSON: Yes. Well, certainly, in my submission, there would not be any evidence before you that - that would suggest that it had been rebutted by - - -
FEDERAL MAGISTRATE: My only question is whether it applies or does not apply in circumstances of an interim hearing.
MR HODGSON: Yes. Well, with respect, I - my submission is that it does but I - I would not - that is going to be - in any way - and I cannot see how it would be, but it were it be a bar for your Honour to deciding the - - -
FEDERAL MAGISTRATE: It is not a bar, I am only trying to determine whether that is a matter which the parties can agree to necessarily move the decision making process forward.
MR HODGSON: Yes. Well, then, I suppose, your Honour, the difficulty is that - it is going to be extremely difficult if your Honour was to say well, there should be equal shared parental responsibility and have a week in [the small town] and a week in Sydney, etcetera.
FEDERAL MAGISTRATE: Yes.
MR HODGSON: That is going to be - that is going to cause some, obviously, logistical difficulties as far as these two little - little children are concerned. But it is my submission that essentially this Court cannot condone an arbitrary action by one party unless there were extraordinarily compelling circumstances, and unless, also, for example, there was some rebuttal of that presumption of equal shared parental responsibility - if there was physical violence or something like that and the wife had to leave and the only place she could go was up to [the small town] to reside with her parents because there was nowhere else she had to go, or to live, that might be a different circumstance, but that is not the case - that is not the case here.
(Transcript 12 September 2007, pages 11 and 12)The father’s counsel’s submissions at the hearing appear to me to confuse the factors under s 61DA(2) excluding the presumption, and the rebuttal of the presumption as not being in the child’s best interests for the parties to have equal shared parental responsibility.
On balance however, it is apparent it was the position ultimately of both legal representatives that his Honour should rely on s 61D(3) and not make an order for equal shared parental responsibility at this interim hearing.
In his judgment the learned Federal Magistrate correctly set out, in a summary way, the requirements of s 61DA as follows:
Section 61DA of the Act creates a presumption, which the Court must apply before it makes any parenting order in respect of a child. By virtue of this section, it is presumed that it is in the best interests of the child concerned that his or her parents have “equal, shared responsibility” for the child.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the children concerned have been subject to abuse or family violence (s.61DA(2))or in the case of an interim hearing the court considers it inappropriate, (s.61DA(3))or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the children for his/her parents to have such equal, shared parental responsibility (s.61DA(4)) [original emphasis] (paragraphs 18 and 19)
In his written submissions, the mother’s counsel purports to summarise paragraph 3 of his Honour’s reasons as follows:
At paragraph 18 of the Reasons for Judgment His Honour refers to s.61DA and, at paragraph 19, correctly says that the presumption does not apply if there are reasonable grounds for the Court to believe that the children concerned have been subjected to family violence or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the interests of the children or his/her parents to have equal shared time. [My emphasis]
This summary mis-quotes his Honour, who clearly referred to the correct wording of the section, namely that the presumption may be rebutted if it is not in the best interests of the children that the parents have equal shared parental responsibility. As the note to the section makes quite clear, s 61DA has nothing to do with the time each parent spends with a child.
The mother’s counsel submitted the evidence which would have rebutted the presumption included:
·the mother’s primary care of the children;
·the age of the children;
·the effect of the split from their mother and JP;
·the father’s long working hours; and
·the mother’s willingness to contribute to the costs of the father’s time with the children.
With respect, it appears to me the matters enumerated above are relevant factors in determining whether it is in the best interests of the children that they should live for equal periods of time with both parents, or live with one parent and spend substantial and significant time with the other parent, or some other arrangement which in the circumstances of the case would be in their best interests.
What his Honour was required to determine was whether the unconverted evidence was sufficient to satisfy him in the exercise of his discretion the presumption applied and that these parents should share equally all “the duties, powers, responsibilities and authority which, by law, parents have in relation to children”, and take into account, as he did, that if he made an order under
s 61DA, that such an order would be disregarded at a final hearing.
Thus his Honour had to consider, if the evidence before him was adequate, making an order for equal shared parental responsibility. If the evidence was inadequate he could rely on s 61DA(3) and make no order. If the evidence demonstrated that it was not in the best interests of these children that their parents should have equal shared responsibility for major long term decisions about them he could find the presumption was rebutted. The effect of such order, if made, would require the parents to consult one other and make a genuine effort to reach agreement about major long term issues in relation to the children. The phrase “major long term issues”, was incorporated into the Act by the amending Act, and is defined in s 4(1) of the Act as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long‑term issue in relation to the child. However, the decision will involve a major long‑term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent. [Original emphasis]
The legislation, as interpreted in Goode, did not permit his Honour to adopt a broad exclusionary approach in dealing with the issue of equal shared parental responsibility, but as I have already noted, he could have relied on s 61DA(3) if there was insufficient evidence for him to make necessary findings to support the order, or to rebut the presumption.
As there is no controversy that his Honour was correct in paragraph 20 of his reasons in finding there were no exclusionary factors such as abuse or family violence relevant under s 61DA(2) it became apparent at the hearing of the appeal that, although not specifically articulated in the grounds of appeal, the thrust of the challenge made by the mother is to a lack of findings to support his Honour’s conclusions in paragraph 22 of his reasons where he said:
There is no evidence which persuades me that the presumption ought to be rebutted because its application would not be in the best wishes of the children.
In Taylor v Barker (2007) 37 Fam LR 461 the Full Court in discussing the order in which the relevant provisions of Part VII should be considered in determining a parenting case at paragraph 62 said:
The legislation gives no express direction or guidance on this issue. However given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsection (2) (“primary consideration”) [sic] and subsection (3) (“additional considerations”) of that section, it would seem only logical that the Court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.
That paragraph is entirely consistent with sub-paragraphs 82(d), (e) and (f) in Goode. This leads to the consideration of whether his Honour’s conclusions in paragraph 22 are supported by his findings, albeit set out later in his reasons, in his consideration of relevant factors under s60CC. His Honour found:
Both parties appear to accept the children have good relationships with each other, although the respondent asserts she has always been the primary care giver. (paragraph 30(c))
In paragraph 30 (l) his Honour discussed the father’s willingness to “facilitate a close and continuing relationship between the respondent and the children” by his proposal the mother continue to share the matrimonial home. His Honour then made the following finding:
This has a number of advantages in allowing the children to maximise their time with both parents and maintain consistent parenting practices including management of their asthma and eczema conditions under sub-para.(g). Whilst there may be some tension, the respondent’s evidence is that she has lived separately under the one roof since separation and until her recent departure to [the small town]. [my emphasis]
At paragraph 36 his Honour made the following significant finding:
I accept that both parties have a positive attitude to their children, and to their obligations as parents. Certainly prior to separation, both parents equally shared the financial responsibility for the children.
In Goode the Full Court noted that because of the prescribed nature of the proceedings reasons given at an interim hearing may be brief.
The principles underpinning the necessity for adequate reasons are subject of well known authority (see Bennett & Bennett (1991) FLC 92-191 and authorities therein cited).
The Federal Magistrate did not, as suggested in Goode, after setting out the uncontroverted facts, then consider relevant matters and make factual findings under s 60CC before he considered whether it was appropriate to make an order for equal shared parental responsibility. The failure by his Honour to adopt this course, demonstrated in the structure of his Honour’s reasons, suggests a lack of findings to underpin his Honour’s determination that it was appropriate to make an order for equal shared parental responsibility.
I accept there was some evidence, which was controversial, and which was not discussed by his Honour, particularly the parents’ conflicting evidence over their stance on immunisation of the children, and administration of medication. Those issues could not be determined on the interim application and could have supported reliance on s 61DA(3).
I was not directed, however, to any evidence relevant to the rebuttal of the presumption other than the matters contained in the mother’s counsel’s submissions which I have set out above.
Whilst his Honour came to the conclusion the presumption was not rebutted, and he should make an order for equal shared parental responsibility without, at that point in his judgment, having made findings about the children’s best interests having regard to relevant factors under s 60CC, I am satisfied that his Honour did not err in the exercise of his discretion in failing to take into account the matters referred to in the mother’s counsel’s submission before me which I have set out above, and making findings the presumption rebutted. That is not to say the factors referred to are otherwise irrelevant. They are particularly relevant to a consideration of whether his Honour afforded appropriate weight to relevant factors in determining the interim parenting orders for the children’s living arrangements (the “time” orders, as distinct from the “equal shared parental responsibility order”).
As I have already explained, reading his Honour’s reasons as a whole I am satisfied that his Honour’s decision to make the order for equal shared parental responsibility was open to him on the evidence given his findings about each of the parties having demonstrated, up to separation, a generally co-operative parenting regime, and there was a lack of substantial relevant evidence to rebut the presumption that these parents could not make long term decisions about their children’s welfare.
Grounds 1, 3 and 4
Asserted failure to following the principles enunciated in Goode, asserted failure to assess impact of the orders on the separation of the siblings, and asserted failure to properly assess the practical difficulties associated with the high costs of travel.
Before commencing my discussion of these grounds, it is important to stress that the guidance afforded in paragraph 82 in Goode does not constitute a statement of binding principle, the departure from which would constitute appealable error. Rather, the Full Court set out “guidelines” to assist, in a practical way, the determination of interim parenting proceedings.
In support of his argument in respect of ground 1 counsel for the mother submitted:
15. At paragraph 41 His [sic] Honour was of the opinion that it was in the best interests of the children to return to Sydney with their mother. His Honour did not consider whether the mother would return if the children were to be returned to Sydney. In that regard His Honour had no power to order the mother to return to Sydney. The only power that His Honour had was to order that the mother be restrained from locating the residence of the children to Queensland and a consequential order for their return to Sydney.
16. At paragraph 42 his Honour contemplated the mother’s refusal to return and said that in such circumstances the children should live with the father. In doing so His [sic] Honour gave no consideration to the effect on the children of the removal from their primary carer, their mother. His Honour failed to consider the effect on the children or their mother. His Honour accepted that the mother had valid reasons to be in Queensland in the short term.
17. It is submitted that his Honour erred in failing to apply fully the criteria set out in Goode’s case and erred in making the order for equal shared parental responsibility.
At the commencement of his reasons the Federal Magistrate set out the orders sought by each of the parties. His Honour then identified the competing proposals before him saying at paragraph 15:
The principal issue to be resolved is where the children should live; namely with the applicant in [the Sutherland Shire] in Sydney or with the respondent in [the small town] in Queensland.
His Honour set out a number of matters raised by each party in their respective affidavits, including the father’s removal of the children from the small town without the mother’s prior knowledge or consent, the giving of the undertaking by the mother not to remove the children from Sydney and her breach of that undertaking, and the father’s proposals for the care of the children on the basis they lived with him. His Honour made a number of factual findings under relevant s 60CC factors. I will later discuss the submission made on behalf of the mother that some factual findings were not supported by the evidence.
His Honour found that “[b]oth parties appear to accept the children have good relationships with each other”. It appears his Honour meant that both the mother and father had a good relationship with each of the children. His Honour initially noted in considering s 60CC(3)(b), but at that stage did not make any finding, that the mother asserted she had always been the prime caregiver of the children. However, later in his reasons (at paragraph 35) his Honour concluded the mother was the children’s primary caregiver up to separation, and that the children would have a close attachment to her. I will return later to this important finding.
While noting that the mother’s move to Queensland was not to be permanent, but rather that in the medium to long term she proposed to return to Sydney and re-enrol the children in their former day care centre, his Honour found the mother had “by her conduct” in breaching the undertaking given in her solicitors’ letter “evidenced a failure to facilitate and encourage a close relationship between the father and the children”, and although in her view she had valid reasons to remain in the small town, “the course adopted by her would preclude the applicant from spending regular time with the children” (paragraph 30 (e)).
His Honour made findings that the father did “not have the financial means or the available time to regularly commute to Queensland” and that long distance travel for the children having regard to their age raised issues of safety and expense.
His Honour made findings critical of the mother in her unilateral action in moving, including the removal of the children from their home which had been their residence since birth, and from the childcare centre they had attended for one year.
Having referred to the father’s proposal that the mother could re-occupy the matrimonial home, and live with him separately under the one roof, his Honour found such a proposal had advantages because it would “maximise” the children’s time with both parents. His Honour then turned to the mother’s position which he set out in paragraph 32 of his reasons as follows:
The respondent asserts that she must:
a)Fulfill her role as a co-trustee of the P Family Trust which operates the small town Motel.
b)Assist in the running of the Motel business in the small town as her father is unwell and does not have the current cognitive capacity to manage finances and provide organisational direction.
c)Negotiate with creditors to avoid harm to the business.
d)Stay in the small town for 3-6 months to set up the appropriate business procedures to ensure the business can be sold.
e)Attend to the management of the Motel including cleaning tasks as staff had to be reduced.
The Federal Magistrate noted it was submitted on behalf of the mother that her actions in remaining in the small town were to “preserve an asset ultimately for the benefit of the children”, but he did not accept that submission on the basis that the motel was owned by the trust. His Honour also accepted there was force in the submission made by the father’s counsel at the hearing that the mother’s focus on the business was putting her own interests above those of the children.
His Honour then made the following findings
37.In the present case, I am satisfied that the respondent has failed to facilitate the applicant spending time with the children. For a meaningful relationship to be fostered, regular time is required to be spent with both parents.
38.The children have suffered from instability in their living arrangements since 10 August 2007 and that instability is continuing.
39.I consider that the best interests of the two children will be served if both parents live in the same area and conclude that spending equal time with both parents would be in the children’s best interests, if that were to occur.
There was no suggestion before his Honour that the mother would return to Sydney from the small town in short to medium term if he made orders that the children live with the father in Sydney. The mother’s position was unequivocal. In paragraph 10 of her affidavit she stated she was unable to return to New South Wales in the short term.
The mother’s submissions raise the question of whether the Federal Magistrate properly assessed the competing proposals, as identified by him in paragraph 15 of his reasons, and assert he therefore erred in the exercise of his discretion in determining the children’s best interests would be served by an order they live with the father (Order 2) and spend equal time with the mother if she “relocated”. In the alternate, the mother’s counsel submits inadequate weight was given to relevant factors if the mother remained in Queensland and the children lived with the father in Sydney for them to spend time with the mother if and when she was able to travel from Queensland to Sydney.
In considering relevant s 60CC factors his Honour made findings which he considered, in the exercise of his discretion, to support the father’s proposal that the children live with him in Sydney until the mother’s return in three to six months, whereafter the parties would equally share the children’s care on an undefined time basis. Those findings were:
·that the children had a good relationship with the father;
·that the children had close relatives in Sydney;
·that the father was in regular employment but did not have the financial means to commute to the small town regularly;
·that the father (as was the mother) was capable of providing for the needs of the children;
·the mother had been prepared to leave the children with the father when she travelled alone to the small town;
·that the mother had failed to facilitate a meaningful relationship between the children and the father; and
·as the children had lived with the mother for almost all of the previous two months, they should live with the father until the interim hearing.
In dealing with the mother’s proposal his Honour found:
·the children “understandably would have a close attachment to their primary caregiver, the respondent”;
·the children had suffered instability in their living arrangements (as a result of the mother’s living arrangements); and
·the mother had failed to facilitate the children spending time with the father.
His Honour did not discuss and weigh the effect on the children in the event they were separated from the mother to whom he acknowledged they would have a close attachment. Further, he did not discuss and weigh the effect of their separation from their half sibling, or the mother’s proposals for the children to maintain their relationship with the father by spending time with him in accommodation provided in the motel in the small town, and by travelling to Sydney once per month at the mother’s expense, save and except to find regularly travelling was not in the children’s best interests, and that the father could not afford to travel.
As I have already noted, his Honour’s findings were that “the best interests of the children will be served if both parents live in the same area” and he concluded that “spending equal time with both parents would be in the children’s best interests if that were to occur.” This finding seems to be predicated on the assumption the mother would return to Sydney immediately as a result of his Honour’s orders, but this did not reflect the mother’s position at the hearing (as identified by his Honour in paragraph 15 of his reasons).
In the recent decision of the Full Court in Sampson and Harnett (No 10) [2007] FamCA 1365, Bryant CJ and Warnick J discussed the necessity to consider and make findings about the impact, including the practical and financial impact, on a mother who was the children’s primary caregiver of being effectively compelled, as the result of parenting orders providing a regime for young children to spend substantial and significant time with the father, ultimately leading to equal time with both parents, to move with the children contrary to her proposals. The practical effect of the orders was that the mother, who was living in Geelong, was required to move to Sydney. The Full Court held that the trial Judge fell into appealable error by not considering the practicability of the orders, including the financial capacity of the mother to move to Sydney.
The majority held that the Court did have power, which power could, in an extreme case, be exercised to compel a parent to move in order to facilitate a shared parenting regime, but found in the particular case the orders “were in effect at the extreme end of the discretionary range” and that “[s]trong and well-defined support for them was necessary.”
I accept that in this case his Honour did not compel the mother to return to Sydney, although Order 3 of his Honour’s orders is predicated on the basis the mother will return, and Order 4 which provides time for the mother to spend with the children whilst living in Queensland is expressed as applicable “If the respondent does not return to [the Sutherland Shire] or the Sydney locale”.
There is no doubt that courts dealing with parenting applications involving a unilateral move by one parent for good reason very often order a return of a child until a proper determination of a proposed relocation can be made on a final basis (see C & S [1998] FamCA 66). However, as his Honour recognised this was an unusual case. He noted that the mother had “chosen to remain in [the small town] for a number of, to her, very valid reasons”. Further, it was not the mother’s position that she would remain in the small town other than on a short term basis.
Although his Honour made a finding that the father did not have the financial means to afford travel to the small town, there was no evidence before him to support that finding. The father gave no evidence of his financial circumstances other than that he was in full time employment, and that the parties had an equity of approximately $162,000 in the matrimonial home.
His Honour did not discuss the practical difficulties and expense which would be incurred by the mother, including her capacity to afford to travel on a regular basis from the small town to Sydney, to maintain a meaningful relationship with the children, or the provision and affordability of alternate accommodation for her, the children and JP, (or for the father) if she was to spend time with the children from 8am to 8pm any day in Sydney. Whilst the father submitted the parents could reside separated under the one roof, given the circumstances of the parties’ separation, including the necessity for the police to be called after an argument, the practicality of this proposal of the father required careful consideration.
His Honour did not place significant weight on the mother’s evidence about her primary role in the care of the children up to separation, and her proposals for their care by her in the small town, as compared or contrasted to the suitability of the arrangements proposed by the father for the care of the children including proposed care arrangements whilst he engaged in employment two days per week (being the non childcare centre days).
Neither party’s affidavit material contained information concerning the children’s present behaviour indicative of “instability”, although I accept that the moves experienced by the children could have the potential to be disruptive to their routine and stability. Accordingly, there is some basis for the complaint his Honour’s finding that “[t]he children have suffered from instability in their living arrangements since 10 August 2007 and that instability is continuing”, was not available to him on the evidence presented.
The mother’s counsel criticised his Honour for failing to assess the impact of the father’s proposal on the relationship between the children and JP. In fairness to his Honour, it is important to note that during discussions with the mother’s solicitor, it was his Honour who raised the issue of separation of the siblings and the mother’s solicitor replied as follows:
FEDERAL MAGISTRATE: What about the half brother?
MR KINGSTON: Sorry - I will do - adult persons if I can - I want to deal with that in terms of keeping siblings together, but I am happy to go to that point now. Certainly - look, there is a difference in age, your Honour, it is about six - six and a half years, seven years, they are half siblings. It is an important factor but certainly all things being equal, in my respectful submission, that that would not weigh in favour of one - one case or the other, except it certainly does add the overall weight of the mother's case that there is benefit to the children and that the long term interest, the short term interest - but the willingness of each party to facilitate and encourage a close bond, well, the difficulty here is, your Honour, simply a fact of the matter is the parties are some - some considerable distance apart.
There is no evidence before you as to the likely affect of separation, but I do urge upon your Honour the only consideration that - the only view that is consistent with all the material is the mother has been the primary carer, and that these are particularly young children. (transcript, 12 September 2007, p 16)
Whilst his Honour made findings about the effect of the mother’s unilateral action in removing the children from the matrimonial home being carried out in disregard to the children’s relationship with the father, he did not discuss the effect of father’s unilateral action in removing the children from the mother and JP in the small town.
As I have already noted, the case before his Honour was unusual, and his Honour’s task was a difficult one. The proceedings were truncated with short, and at times, conflicting or ambiguous oral submissions. It was not, prima facie, a case where one party sought to relocate interstate on a permanent basis bringing into play the principles applicable to those parenting cases known as “relocation cases”, but that was, in the short term, the practical effect of the orders sought by the mother and thus, in my view, it required a very careful assessment of the competing proposals to structure a regime in the best interests of these very small children. This was particularly so where the matter was dealt with “on the papers” with no testing of the evidence, and no expert evidence such as would normally be given in a relocation case by a Family Consultant as to the children’s attachments, and developmental needs.
As noted earlier, the grounds raised by the mother are principally a challenge to the exercise of discretion in respect of an interim order. As emphasised in the authorities, including Goode, extensive reasons by his Honour were not necessary, but it was necessary to properly identify and weigh the relevant aspects of the competing proposals.
I am satisfied that on balance, in this case his Honour’s discretion miscarried. Although his Honour clearly identified the competing proposals, and assessed carefully many of the factors favouring the father’s proposal, he did not adequately address and weigh factors favouring the mother’s proposal, particularly the effect on the children of separation from their primary caregiver, and the practicalities of the mother maintaining a meaningful relationship with the children whilst she lived in Queensland. Rather, his Honour appears to have primarily determined the application on the basis that the mother should return to the former matrimonial home to implement an equal shared parenting regime. This was not a proposal agitated by the parties at the hearing. I am satisfied the failure by his Honour to give proper consideration to all aspects of both parties’ proposals constitutes appealable error.
I was not informed of the dates allocated for final hearing of this matter, or whether the mother has now returned from the small town rendering a further interim hearing unnecessary. In the event that a further interim hearing is necessary the matter should be remitted for re-hearing as soon as possible.
Costs
At the conclusion of the hearing both parties, in the event the appeal was allowed, and a re-hearing ordered, sought costs certificates pursuant to the provisions of Federal Proceedings (Costs) Act 1981 (Cth). For the reasons given by me I am satisfied that the necessary criteria under the Federal Proceedings (Costs) Act 1981 (Cth) for the grant of certificates having been satisfied, it is appropriate that I make orders for certificates for both parties for the appeal and the re-hearing, if a re-hearing is necessary.
I certify that the preceding one hundred and one (101) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland.
Associate:
Date: 21 December 2007
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